      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANTHIUM, LLC,                     )
                                  )
       Plaintiff,                 )
                                  )
       v.                         )         C.A. No. N18L-09-044 ALR
                                  )
LOUISE SHELTON, as personal       )
representative of the ESTATE OF   )
JOSEPH WOOD, TANYA R.             )
GLASCO, heir, REGINALD L.         )
HARRIS, heir, IRA D. JONES, heir, )
TIFFANY L. MATTHEWS, heir,        )
STACEY MCBALL, heir, LOUISE )
SHELTON, heir, ANNETREA L.        )
WILKINS, heir, JOSEPH A. WOOD, )
heir, MYRACLE WOOD, heir,         )
TIANNA S. WOOD, heir,             )
                                  )
       Defendants.                )

                          Submitted: November 5, 2019
                           Decided: December 4, 2019

     Upon Defendant Reginald L. Harris’s Motion for Summary Judgment
                   DENIED WITHOUT PREJUDICE

                Upon Plaintiff’s Motion for Summary Judgment
                     DENIED WITHOUT PREJUDICE

                         MEMORANDUM OPINION



Catherine Di Lorenzo, Esquire, Wilmington, Delaware, Attorney for Plaintiff.

Reginald L. Harris, Self-Represented Litigant.

Rocanelli, J.
      This is a scire facias sur mortgage action. Defendant Reginald L. Harris

(“Harris”) and Plaintiff Anthium, LLC (“Plaintiff”) have submitted cross-motions

for summary judgment. Harris initially filed a motion to dismiss, but because Harris

submitted various supplemental materials with his motion, the Court converted

Harris’s motion to dismiss into a motion for summary judgment. The parties were

afforded the opportunity to present all materials pertinent to such a motion under

Superior Court Rule of Civil Procedure 56. Plaintiff opposes Harris’s motion.

Plaintiff has filed a motion for summary judgment which Harris opposes. The other

defendants in this action (collectively with Harris, “Defendants”) have taken no

position on the pending motions.

                          FACTUAL BACKGROUND

      Harris is an heir of Joseph Wood. In 2007, Joseph Wood and Bridgette D.

Hall (“Bridgette Hall”) executed a home loan (“Loan”) with Citifinancial, Inc.

(“Citifinancial”).   To secure the Loan, Joseph Wood executed a mortgage

(“Mortgage”), which Joseph Wood delivered to Citifinancial. The Mortgage, which

was recorded in New Castle County, granted a first priority lien on the property

located at 65 Kennard Drive, Newark, Delaware 19711 (“Property”) to Citifinancial.

Joseph Wood is the sole mortgagor listed on the Mortgage.

      The Mortgage contains various agreements between Joseph Wood and

Citifinancial.   First, the parties agreed that Joseph Wood would make timely

                                         1
payments on the Loan and that Joseph Wood’s failure to make timely payments

would constitute a breach of the Mortgage and entitle Citifinancial to declare the

Loan due and foreclose on the Mortgage after providing Joseph Wood with notice

of the breach and an opportunity to cure. With respect to the notice and opportunity

to cure, the parties agreed that the notice would specify (1) the breach; (2) the action

required to cure the breach; (3) a date, not less than 10 days from the notice date, by

which the breach must be cured; and (4) that a failure to cure the breach by the

specified date may result in acceleration of the Loan sums, judicial foreclosure, and

sale of the Property. The parties also agreed that any forbearance by Citifinancial in

exercising its rights under the Mortgage would not constitute waiver of those rights

or preclude Citifinancial from exercising those rights. Finally, the parties to the

Mortgage agreed that the covenants and rights contained in the Mortgage would bind

and inure to the parties’ successors and assigns.

      Joseph Wood died without a will on December 14, 2012. At the time of his

death, Joseph Wood was married to Bridgette Wood.1 Pursuant to Delaware’s

intestate succession laws Bridgette Wood received a life estate in the Property and

Joseph Wood’s heirs received future interests in the Property.2 In September 2015,


1
  The record is silent regarding whether Bridgette Wood and Bridgette Hall are the
same person, but the Court presumes that that they are. The Court’s analysis is not
dependent on this presumption.
2
  See 12 Del. C. § 502. While the parties agree that Delaware’s intestate succession
laws apply and that the interests in the Property distributed in this manner, neither
                                          2
Citifinancial assigned the Mortgage to Citifinancial Servicing, LLC, which then

assigned the Mortgage to Bayview Loan Servicing, Inc. (“Bayview”). Meanwhile,

Joseph Wood’s estate and/or Bridgette Wood defaulted on the Mortgage by failing

to make payments on the Loan. Bridgette Wood died in February 2018, at which

time Joseph Wood’s heirs acquired possessory interests in the Property.3 During the

pendency of this action, Bayview assigned the Mortgage to Atlantica, LLC, which

then assigned the Mortgage to Plaintiff.

                                LEGAL STANDARD

      The Court may grant summary judgment only where the moving party can

“show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”4 The moving party bears the initial


party cites to specific statutory authority. Moreover, neither party indicates whether
any of Joseph Wood’s surviving issue were also issue of Bridgette Wood, which is
relevant to the distribution of a decedent’s intestate estate. See id. § 502(3), (4).
Upon review of the relevant statutory authority, the Court is satisfied that the
interests in the Property distributed according to the parties’ representations,
regardless of whether Joseph Wood’s surviving issue were issue of Bridgette Wood
as well. See id. § 502(3) (providing the surviving spouse a life estate in intestate real
estate when all surviving issue are issue of the surviving spouse); id. § 502(4)
(providing the surviving spouse a life estate in intestate real estate when one or more
surviving issue are not issue of the surviving spouse).
3
  The parties agree that Joseph Wood’s heirs acquired possessory interests in the
Property upon Bridgette Wood’s death but cite no legal authority for this
proposition. Upon review of Delaware law, the Court is satisfied that Joseph
Wood’s heirs acquired possessory interests in the Property upon Bridgette Wood’s
death. See 12 Del. C. § 503(1) (“The part of the intestate estate not passing to the
surviving spouse . . . passes . . . [t]o the issue of the decedent, per stirpes . . . .”).
4
  Super. Ct. Civ. R. 56.
                                               3
burden of proof and, once that is met, the burden shifts to the non-moving party to

show that a material issue of fact exists.5 “A fact is material if it ‘might affect the

outcome of the suit under the governing law.’”6 “A dispute about a material fact is

genuine when ‘the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’”7 Thus, the issue is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.”8 At the motion for summary

judgment phase, the Court must view the facts “in the light most favorable to the

non-moving party.”9

                                   DISCUSSION

I.    Harris’s Motion for Summary Judgment

      A.     The Complaint Is Not Time-Barred

      Harris argues that he is entitled to summary judgment because the Complaint

is time-barred pursuant to 12 Del. C. § 2102(a), which provides:

      All claims against a decedent’s estate which arose before or at the death
      of the decedent, . . . whether due or to become due, absolute or
      contingent, liquidated or unliquidated, founded on contract, tort or other
      legal basis, except debts of which notice is presumed pursuant to § 2103

5
  Moore v. Sizemore, 405 A.2d 679, 680–81 (Del. 1979).
6
  Smith v. Haldeman, 2012 WL WL 3611895, at *2 (Del. Super. Ct. Aug. 21, 2012)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986)).
7
  Gateway Estates, Inc. v. New Castle Cty., 2015 WL 13145613, at *13 (Del. Super.
Ct. Sept. 19, 2015) (quoting Anderson, 477 U.S. at 248).
8
  Id. (quoting Anderson, 477 U.S. at 251–52).
9
  Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
                                         4
         of this title, if not barred earlier by other statute of limitations, are
         barred against the estate, the personal representative and the heirs and
         devisees of the decedent unless presented . . . within 8 months of the
         decedent’s death.10

Harris argues that Section 2102(a)’s eight-month time-bar precludes Plaintiff’s

claims because the Complaint was not filed until six years after Joseph Wood’s

death.

         Section 2102(a)’s eight-month time-bar does not preclude Plaintiff’s claims.

First, Plaintiff’s claims arise from “debts of which notice is presumed pursuant to”

12 Del. C. § 2103. Section 2103 provides:

         An executor or administrator shall be deemed to have notice only to
         mortgages (but not of the bonds accompanying such mortgages) and of
         such judgments as would be liens against real estate at the date of death
         of the decedent, which mortgages and judgments are of record in the
         county of this State in which letters were granted upon the estate of the
         decedent, unless there has been a failure to insert them in the general
         indices of the office wherein it is proper that they be recorded.11

The Mortgage was recorded in New Castle County, Delaware, the same county in

which the letters testamentary were granted. Accordingly, notice of the mortgage is

presumed pursuant to Section 2103.

         Second, Plaintiff’s claims were not barred earlier by another statute of

limitations.     Section 2102(e)(2) of Title 12 provides a mortgage-foreclosure




10
     12 Del. C. § 2102(a) (emphasis added).
11
     12 Del. C. § 2103.
                                          5
exception to Section 2102’s general time-bar rules. Specifically, Section 2102(e)(2)

provides:

         The failure to present a claim on a bond secured by a mortgage on real
         estate, in accordance with the foregoing provisions, shall not invalidate
         the bond so as to prevent the foreclosure of the mortgage on real estate
         at any time thereafter, but no claim may be asserted against the
         decedent’s estate on or by reason of the bond.12

         Plaintiff seeks an in rem foreclosure judgment on the Mortgage, not a

monetary judgment on the bond or note. Accordingly, Plaintiff’s failure to present

the claim within eight months after Joseph Wood’s death did not “invalidate the

bond so as to prevent the foreclosure of the mortgage.”13

         Because notice of the Mortgage is presumed pursuant to Section 2103 and

Plaintiff’s claims were not barred earlier by other statutes of limitations, Section

2102(a)’s eight-month time-bar does not preclude Plaintiff’s claims. Therefore,

Harris has not shown that he is entitled to judgment as a matter of law on this basis.

         B.    Harris Does Not Establish Fraud or Coercion

         Harris’s motion also states that Harris “would like to take issue with the

fraudulent loan and mortgage,” which Harris alleges were the result of coercion.

Harris pleads no facts and provides no evidence supporting these allegations. Harris

therefore has not satisfied his initial burden of “showing” that no material issues of



12
     12 Del. C. § 2102(e)(2).
13
     Id.
                                            6
fact are present.14 Accordingly, Harris is not entitled to summary judgment on this

basis and Harris’s motion for summary judgment must be denied.15

II.   Plaintiff’s Motion for Summary Judgment

      Plaintiff argues that it is entitled to summary judgment because there is no

dispute that Defendants are in breach of the Mortgage’s terms. Plaintiff correctly

states that Defendants’ breach is not disputed. However, on this record, Plaintiff has

nevertheless failed to meet its initial burden because Plaintiff has provided no

evidence showing it provided Defendants with notice and opportunity to cure the

breach. The Court determines whether a genuine issue of material fact exists based

on evidence in the record.16 The Mortgage conditions Plaintiff’s right to foreclose

the Mortgage on Defendants’ failure to cure the breach “on or before the date

specified in the notice.” Plaintiff points to no evidence showing that Plaintiff

provided Defendants with notice of the breach or time to cure, as required by the



14
   See Moore, 405 A.2d at 680 (“A summary judgment may not be granted under
Rule 56 unless there are no material issues of fact, and the moving party initially
bears the burden of showing that none are present.” (citation omitted)).
15
   See id. at 680–81; see also Super. Ct. Civ. R. 9(b) (“In all averments of fraud, . . .
the circumstances constituting fraud . . . shall be stated with particularity.”).
16
   See Elenza, Inc. v. Alcon Labs. Holding Corp., 183 A.3d 717, 721 (Del. 2018)
(“The movant must present sufficient evidence from which a rational trier of fact
could find in its favor.”); see also Super. Ct. Civ. R. 56(c) (“The judgment sought
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.”).
                                            7
Mortgage. Therefore, Plaintiff has not met its initial burden of showing no genuine

issue as to any material fact. Accordingly, summary judgment is inappropriate on

this record and Plaintiff’s motion must be denied.

                                 CONCLUSION

      The Complaint is not time-barred and Harris is therefore not entitled to

judgment as a matter of law on that basis; summary judgment is therefore denied.

In addition, Harris has not provided support for his claim that the mortgage resulted

from fraud or coercion; summary judgment is therefore denied without prejudice.

With respect to Plaintiff’s motion, Plaintiff has produced no evidence showing that

it complied with the notice and opportunity-to-cure requirements upon which the

Mortgage conditions Plaintiff’s right to foreclose; summary judgment is therefore

denied without prejudice.

      NOW, THEREFORE, this 4th day of December 2019, Defendant

Reginald Harris’s motion for summary judgment is hereby DENIED as to the

statute of limitations and DENIED WITHOUT PREJUDICE as to fraud and

coercion and Plaintiff’s motion for summary judgment is hereby DENIED

WITHOUT PREJUDICE.

      IT IS SO ORDERED.

                                                                                                                                Andrea L. Rocanelli
                                             ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                             The Honorable Andrea L. Rocanelli


                                         8
