SUPERIOR COURT
oF THE

STATE OF DELAWARE

Jeff`rey J Clark Kent County Courthouse
Judge 38 The Green
Dover, DE 19901
302-735-2111

January 22, 2018

Daniel T. Conway, Esquire Pedro A. Rivera

Atlantic LaW Group, LLC Antonia Castillo

512 East Market Street 275 Gravelly Run Branch Road
Georgetown, DE 19947 Clayton, DE 19938

RE: JPMorgan Chase Bank, National Association,
successor by merger to Chase Home Finance, LLC v.
Pedro A. Rivera, et al.

C.A. No. K15L-09-011 JJC

Submitted: January 12, 2018
Decided: January 22, 2018

Dear Mr. Rivera, Ms. Castillo, and Mr. Conway:

This letter order addresses a motion filed by Plaintiff JP Morgan Chase Bank
National Association (hereinafter “JP Morgan”) seeking summary judgment against
Defendants Pedro A. Rivera and Antonia Castillo (hereinafter “Defendants”). JP
Morgan filed a mortgage foreclosure action for their interest in 275 Gravelly Run
Branch Road, Clayton, Delaware 19938 on September 15, 2015, seeking a judgment
in rem against Defendants. JP Morgan asserts that Defendants failed to pay monthly
installments required under the Mortgage. In support of its claim for summary
judgment, JP Morgan filed an affidavit stating that Defendants missed the payment
due on the loan on May l, 2014 and, because Defendants have not made payments

to bring the loan current, JP Morgan accelerated the loan balance under the terms of

the mortgage. The affidavit also itemizes the amounts JP Morgan alleges remain
unpaid and due.

lt is a Well-settled principle in Delaware law that there are only a limited
number of defenses applicable in a scire facias sur mortgage action.1 As explained
in CitiMortgage, Inc. v. Bishop, “[t]he defenses available in a scire facias sur
mortgage foreclosure action are limited to only those claims or counterclaims arising
under the mortgage In this regard, Delaware courts recognize the defenses of
payrnent, satisfaction or avoidance.”2

The Defendants argued in their Written response that they Will present an
avoidance defense. Avoidance refers to the common law plea know as confession
and avoidance, Which admits the allegations of the complaint but asserts a matter
Which defeats the mortgage holder’s rights.3 Examples of matters properly asserted
under a plea of avoidance include acts of God, assignment, conditional liability,
duress, exception, forfeiture, fraud, illegality, justification, non-performance of
condition precedents, and Waiver.4

At the January 12, 2018 summary judgment hearing, however, the Defendants
demonstrated no basis for an avoidance defense, but rather alleged it only in a
conclusory matter. They also did not reference in their Written response any
evidence of record supporting such a defense. Instead, they focused on a 2012 loan

modification to the mortgage Mr. Rivera argued that because the modification Was

 

l Malsberger v. Parsons, 75 A. 698, 702 (Del. Super. Mar. 16, 1910) (surveying the law of other
jurisdictions and recognizing only limited defenses); see, e.g., CitiMorrgage, Inc. v. Bishop, 2013
WL 1143670, at *5 (Del. Super. Mar. 4, 2013) (acknowledging the limited defenses available in a
scire facias sur mortgage); see also 59A C.J.S. Mortgages § 897 (acknowledging that various
matters do not constitute a defense to a scire facias action and listing the “defenses that may be
interposed to a scire facias sur mortgage [as including] satisfaction or payment of all, or any part,
of the mortgage money, that the mortgage never had become a valid lien, or any other lawful plea
in avoidance of the deed”) (citations omitted).
2 Bishop, 2013 WL 1143670, at *5 (cirations omitted).
3 Gora'y v. Perform Bla'g. Components, Inc., 310 A.2d 893, 895 (Del. Super. Ct. Aug.l3, 1973).
4 First Fea'. Sav. & Loan Assn. of Norwalk v. Falls, 1986 WL 9916, at *1 (Del. Super. Ct. Sep. 9,
1986).

2

not filed with the Kent County Recorder of Deeds a genuine issue of material fact
exists which precludes summary judgment. Additionally, Mr. Rivera argued that the
loan modification does not allow JP Morgan to assess fees associated with late
payments or foreclosure. Mr. Rivera concedes that he is otherwise in default and
has not made the payments due. In fact, he offers no evidence that he made any
payments on this mortgage at any time after initial default.

Summary judgment is appropriate if, when viewing the facts in the light most
favorable to the nonmoving party, “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.”5 In deciding such a motion, the Court must accept
all undisputed factual assertions and accept the nonmoving party's version of any
disputed facts.6 The burden is on the moving party to show that there are no material
facts in dispute.7 However, if the movant meets his or her initial burden,` then the
burden shifts to a non-moving party to demonstrate the existence of material issues
of fact.8 When the facts of record “permit a reasonable person to draw only one
inference, the question becomes one for decision as a matter of law.”9

JP Morgan asserts that there is no genuine issue of material fact, and submitted
an affidavit stating the amount due on the loan, that the loan is in default, and that
the loan has been accelerated Accordingly, the burden shifts to the Defendants to
demonstrate that there is a genuine issue of material fact which precludes summary

judgment

 

5 Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
6 Sztybel v. Walgreen Co., 2011 WL 2623930, at *2 (Del. Super. Ct. June 29, 2011).
7 Moore, 405 A.2d at 680.
8 Ia'. at 681 (citing Hurtt v. Goleburn, 380 A.2d 145 (Del. 1974)).
9 Friel v. Hartfora' Fire Ins. Co., 2014 WL 1813293, at *2 (Del. Super. May 6, 2014) ajj"a' Friel
v. Hartfora' Fire Ins. Co., 108 A.3d 1225 (Del. 2015) (citing Wooten v. Krger, 226 A.2d 238, 239
(Del. 1967)).
3

Mr. Rivera, on behalf of both Defendants, merely asserts that the 2012 loan
modification creates a triable issue of material fact because it was not recorded with
the Kent County Recorder of Deeds. In support, he cites Shrewsbury v. The Bank of
New York Mellonl° as authority for this argument The Shrewsbury case, however,
does not address that issue. Rather, in Shrewsbury, the Delaware Supreme Court
held that summary judgment was inappropriate where a mortgage holder sought
foreclosure on a property but did not produce the promissory note, claim to be the
holder of the note, or claim to be entitled to enforce the note.11 Mr. Rivera cites no
other authority in support of his argument Moreover, Mr. Rivera acknowledges the
genuineness of the modification On one hand he argues that the modification
supports his claim that the amount due in rem is less than that claimed by JP Morgan.
On the other hand, he contradictorin argues that the document supports his claim of
avoidance because it was not recorded.

Rather than the aforementioned defense of avoidance, Mr. Rivera’s focus at
oral argument was his challenge of the amount of the in rem judgment In this regard,
JP Morgan submitted an affidavit evidencing that the total amount due to date is
$455,790.75 plus attomey’s fees, with accruing interest After reviewing and
considering Mr. Rivera’s submission of the 2012 loan modification at the hearing,
the Court notes that the loan modification explicitly provides that “[a]ll terms and
provisions of the Loan Documents, except as expressly modified by this Agreement,
remain in full force and effect”. Mr. Rivera does not articulate an argument
regarding how or why the 2012 loan modification altered Defendants’ responsibility
to pay late fees or fees associated with foreclosure. Moreover, he offered no
affidavits and demonstrated no evidence impacting the amount allegedly due. In

fact, he presents no evidence of even a single payment on the account balance. The

 

10 160 A.3d 471 (Del. 2017).
11 ld. at 478.

Court does not find that Mr. Rivera demonstrated evidence that generates a triable
issue of fact regarding the amount due on the mortgage. Consequently, summary
judgment in rem is appropriately granted in favor of JP Morgan for the amounts
articulated in its affidavit

In conclusion, JP Morgan is entitled to judgment in rem in this matter in the
amount of $455,790.75 plus attorney fees of $21,288.43, together with interest

accruing at the legal rate and costs. Final judgment in rem is hereby entered in that

amount
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Judge
JJC:jb

