      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


Federal National Mortgage               )
Association (“FNMA”)                    )
                                        )
                 Plaintiff,             )
                                        )
           v.                           )     C.A. No. N13L-11-020 VLM
                                        )
LaDon Terry-Graham and                  )
Emory L. Graham                         )
                                        )
                                        )
                 Defendants,            )



                      Date Submitted: October 16, 2015
                       Date Decided: October 22, 2015


      COMMISSIONER’S REPORT AND RECOMMENDATION ON

         PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
                            AND
         DEFENDANT’S MOTION FOR DEFAULT JUDGMENT


Melanie Thompson, ATLANTIC LAW GROUP, LLC, 913 N. Market Street, Suite
1011, Wilmington, DE 19801, Attorney for Plaintiff.

LaDon Terry-Graham, 224 Remi Drive, New Castle, DE 19720, Defendant.

Emory L Graham, 224 Remi Drive, New Castle, DE 19720, Defendant.


MANNING, Commissioner
        Before the Court is Plaintiff’s Motion for Summary Judgment and

Defendant’s Motion for Default Judgment.                            Federal National Mortgage

Association (“FNMA”) filed its motion on June 24, 2015, and Defendant filed her

motion on July 22, 2015. A hearing was held on the respective motions on

October 16, 2015. 1

        After fully and thoroughly reviewing the parties’ respective positions, I have

determined that the issues presented may be decided on the present record. For the

reasons that follow, pursuant to Super Court Civ. Rule 132(a)(4), I recommend that

Plaintiff’s Motion for Summary Judgment be granted and Defendant’s Motion for

Default Judgment be denied.

                                                FACTS

        On November 5, 2013, Plaintiff filed a scire facias sur mortgage complaint

against Defendants seeking foreclosure of Plaintiff’s interest in the property,

commonly known as 224 Remi Drive, New Castle, Delaware 19720 under the

mortgage referenced in the complaint.

        The Mortgage provides that upon the failure of Defendants to pay when due

any obligation or any portion thereof when due, the loan shall be in default and

Plaintiff, after notice and opportunity to cure, may accelerate the sum secured by

the Mortgage and may foreclose upon the Property for the collection of the

1
  Emory Grahm was not present at the hearing. According to LaDon Graham, Mr. Graham abandoned the property
in question and no longer lives with her.

                                                     2
obligation together with the costs of suit and attorney’s fees plus all sums

expended in preservation of the property and Plaintiff’s security. 2

       Presently, there have been two assignments of the mortgage.            Both

assignments were properly filed with the recorder of deeds. 3 Counsel for Plaintiff

asserts that FNMA possesses the “wet ink” note and mortgage and there is a

certified copy of it on file with the recorder of deeds. 4

       It is undisputed that Defendant stopped payment on the property around

September 1, 2012. However, Defendant has continued to and currently does

occupy the residence. After Defendant stopped payment on the property, the

mortgage went into default. The notice of default and an acceleration demand

were sent to Defendant’s address.5 The default notice provided Defendant with

notice that she was behind on her mortgage payment.                Subsequently, an

acceleration demand was sent to Defendant. The acceleration demand stated that

Defendant stopped paying on the mortgage for the certain period of time and as a

result, Defendant is in default. Therefore, under the mortgage that Defendant

signed, because Defendant stopped payment, the entire amount of the mortgage

was due. The total relief sought by Plaintiff now totals $510,420.80



2
  Plaintiff’s Motion for Summary Judgment, ¶2
3
  Hearing Transcript at 17.
4
  Id. at 18.
5
  Id. at 19.
                                                3
                                      PROCEDURAL HISTORY

           Plaintiff brought suit against Defendants on November 5, 2013, seeking

foreclosure of Plaintiffs interest in the property owned and occupied by

Defendants.

           On November 18, 2013, Defendants were served with the Complaint. 6

Rather than file an answer to the original complain, Defendant LaDon Terry-

Graham filed a Motion to Dismiss Plaintiff’s Complaint on December 4, 2013.

The Court held a hearing and subsequently denied Defendant’s motion on February

11, 2014. 7         Notably, Defendant filed an answer, generally denying all of the

allegations of the Complaint, but not until February 25, 2015. Plaintiffs now seek

to have Defendant’s Answer stricken and for the Court to enter summary judgment

in Plaintiff’s favor.

           On July 22, 2015, Defendant LaDon Terry-Graham filed a Motion for

Default Judgment against Plaintiff. Defendant based her Motion upon Plaintiff’s

failure to reply to Defendant’s Answer and Affirmative Defenses. It should be

noted that Defendant Emory Graham has yet to appear throughout this litigation

despite being properly served with the original complaint personally.




6
    Plaintiff’s Motion for Summary Judgment, ¶ 3.
7
    Id. at ¶ 6 .

                                                    4
                               STANDARD OF REVIEW

       The Court’s principal function when considering a motion for summary

judgment is to examine the record to determine whether genuine issues of material

fact exist.8 Summary judgment will be granted if, after viewing the record in a

light most favorable to a non-moving party, no genuine issues of material fact exist

and the moving party is entitled to judgment as a matter of law. 9 If, however, the

record reveals that material facts are in dispute, or if the factual record has not been

developed thoroughly enough to allow the Court to apply the law to the factual

record sub judice, then summary judgment will not be granted. 10

       The Court’s function is not to weigh the evidence or to accept that which

appears to have greater weight. 11 Summary judgment is not appropriate when the

Court determines that it does not have sufficient facts in the record to enable it to

apply the law to the facts before it.12

       When deciding a motion for default judgment, when a party against whom a

judgment for affirmative relief is sought has failed to appear, plead or otherwise




8
  Super.Ct.Civ.R. 56(c); Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325
(Del.Super. 1973).
9
  Id.
10
   Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
11
   Oliver B. Cannon & Sons, Inc., 312 A.2d at 325.
12
   Savor, Inc. v. FMR Corp. and Upromise, Inc., 2003 WL 21054394 (Del.Super. 2003).
                                               5
defend as provided by these Rules, and that fact is made to appear, judgment by

default may be entered. 13

                                     ANALYSIS

          The facts before the Court, as gleaned from the argument of counsel and

Defendant at the hearing on October 16, 2015, including the pleading and exhibits,

make it clear that there is no genuine issue of material fact regarding the alleged

dispute; therefore, summary judgment for Plaintiff is appropriate. The terms of the

agreement, made between Defendant and American Bank (mortgage lender) are

clear. Defendant was required to make payments under the mortgage agreement.

If Defendant failed to make such payments, the entity that had interest in the

property, in this case FNMA, had the right to accelerate the sum secured by the

Mortgage and thereafter foreclose upon the property for the collection of the

obligation together with the costs of suit and attorney’s fees plus all sums

expended in preservation of the property and Plaintiff’s security.

          Defendant does not deny that she failed to make payments on the mortgage

beginning around September 1, 2012. Because Defendant failed to make the

payments, as required by the mortgage agreement, Plaintiff sent Defendant a notice

that she was in default. Subsequently, Defendant was notified that because she

was in default, Plaintiff was accelerating the mortgage and the entire amount was


13
     Super. Ct. Civ. R. 7(a).
                                          6
due under the mortgage agreement. As of this date, Defendant has yet to make a

payment on the mortgage subsequent to September 1, 2012.

       As evidenced by Plaintiff’s Exhibits, all relevant documents were properly

filed with the recorder of deeds, including both assignments of the mortgage.

Plaintiff has submitted to the Court all relevant documents showing the validity of

the original note, the validity of the mortgage that was filed with the recorder of

deeds and subsequent assignments to the banks that hold the assignments.

Therefore, both assignments to the mortgage are valid. As the assignment applies

to the mortgage and note, Plaintiff has standing to bring this action and may

enforce the assignment.

       In her Answer, Defendant lists several affirmative defenses. Historically, a

defendant may rely upon several limited affirmative defenses. 14 The defenses

include payment, satisfaction, or avoidance of the mortgage. 15 A plea in avoidance

must relate to the validity of the mortgage documents. 16 Here, Plaintiff has made

arguments questioning the existence of the “wet ink” mortgage and note and the

improper assignment of the mortgage.              Neither argument is support by any

affirmative evidence—rather; the arguments are merely unsupported conclusory

allegations. Additionally, the Delaware Supreme Court, in Deutsche Bank Nat.


14
   Wells Fargo Bank, N.A. v. Nickel, 2011 Del. Super. LEXIS 544, *4.
15
   Id.
16
   Id.
                                              7
Trust Co. v. Moss, ruled that a defendant lacks standing to contest an assignment

where the defendant, as mortgagee-debtor, is neither a party nor a third-party

beneficiary of the assignment. 17 In this case, Defendant is neither, therefore she

lacks standing to challenge even an improper assignment.                Unfortunately for

Plaintiff, the law is clear that an unsupported defense does not, by itself, raise a

genuine issue of material fact.18 There is no dispute about the validity of the

documents provided by Plaintiff or the debt owed by Defendant. As a result,

Plaintiff is entitled to summary judgment as a matter of law.

       Finally, Defendant’s Motion for Default Judgment should be denied.

Defendant asserts that she is entitled to default judgment because Plaintiff failed to

reply to Defendant’s Answer and Affirmative Defenses. It should be noted that no

reply or response is required or permitted, pursuant to Superior Court Rule 7(a).19

Rule 7(a) states:

          There shall be a complaint and an answer; a reply to a
          counterclaim denominated as such; and answer to a cross-claim,
          if the answer contains a cross-claim; a third-party complaint, if a
          person who was not an original party is served under provision
          of Rule 14; and a third-party answer, if a third-party complaint is
          served. No other pleading shall be allowed, except that the
          Court may order a reply to an answer or a third-party answer. 20




17
   99 A.3d 226 (Del. 2014) (TABLE), 2014 WL 2918227 (Del. Jun. 24, 2014).
18
    See JP Morgan v. Smith, 2014 WL 7466729, at *2 (Del. Super., December 15, 2014).
19
   Super. Ct. Civ. R. 7(a).
20
   Id. (emphasis added).
                                              8
As a result, Defendant’s Motion for Default Judgment is without merit and should

be denied.

                               CONCLUSION

      For the reasons set forth herein, Plaintiff’s Motion for Summary Judgment

should be GRANTED and Defendant’s Motion for Default Judgment should be

DENIED.

      IT IS SO RECOMMENDED.




                                                 /s/ Bradley V. Manning
                                                 BRADLEY V. MANNING,
                                                 Commissioner

oc:   Prothonotary
cc:   Defendant




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