IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Defendants.

DEUTSCHE BANK TRUST )
COMPANY AMERICAS, as Trustee )
For Residential Accredit Loans, Inc., ) C.A. No. N16L-07-149 MMJ
Mortgage Asset-Backed Pass-Through )
Certiflcates, Series 2006-QSS, )
)
)
Plaintiff, )
)
V. )
)
EYERCE POSTON a/k/a Eyerce )
Armstrong Poston and )
A VEE POSTON, JR., ) JURY TRIAL OF
) TWELVE DEMANDED
)
)

Submitted: August 16, 2018
Decided: August 23, 2018

On Plaintiff Deutsche Bank Trust Company Americas’
Motion for Summary Judgment

DENIED

On Poston Defendants’ Motion for Summary Judgment
DENIED

M

Joelle E. Polesky, Esq., Stradley, Ronon, Stevens & Young, LLP, Attorneys for
Plaintiff.

Richard L. Abbott, Esq., Abbott Law Firm, Attorneys for Defendant.

JOHNSTON, J.

The parties have cross-moved for summary judgment. This is a foreclosure
action. There is no dispute that Defendants are in default of their loan obligations
on the subject property.

Plaintiff argues that Defendants have failed to plead any allowable defenses,
i.e., payment, satisfaction or avoidance Further, Plaintiff has standing to foreclose
because the note Was properly endorsed to Plaintiff. Finally, Defendants Were not a
party to assignment of the mortgage, and thus are precluded from challenging the
assignment.

Defendants assert, inter alia, that Plaintiff Was not the holder of the note at
the time this action Was filed. Standing must exist at the time the action is
commencedl Additionally, questions exist as to Plaintiff’ s present standing to
enforce the mortgage and note because of the lack of clarity in the documents
allegedly evidencing valid transfers of the note from the original note holder. A
claim that a plaintiff does not have the right to enforce the debt Which the mortgage
secures is “one of the possible pleas in avoidance.”2

Summary judgment is granted only if the moving party establishes that there

are no genuine issues of material fact in dispute and judgment may be granted as a

 

1Smith v. Guest, 16 A.3d 920, 934 (Del. 2011).
2Shrewsbury v. Bank ofN. Y. Mellon, 160 A.3d 471, 478 (Del. 2017).
2

matter of law.3 All facts are viewed in a light most favorable to the non-moving
party.4 Summary judgment may not be granted if the record indicates that a material
fact is in dispute, or if there is a need to clarify the application of law to the specific
circumstances5 When the facts permit a reasonable person to draw only one
inference, the question becomes one for decision as a matter of law.6 If the
non-moving party bears the burden of proof at trial, yet “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case,” then
summary judgment may be granted against that party.7

The Court finds that genuine issues of material fact preclude summary
judgment in favor of either party. These factual issues include the timing of the
endorsement to Plaintiff, and the chain of endorsements from the original note holder
to Plaintiff. However, the following are not genuine issues of fact relevant to this
action: the legitimacy of Judy Faber’s stamp endorsing the note; the authority of the
Assistant Secretary of MERS to sign assignments; and the authority of Joshua
Swinton to act on behalf of chen to sign the Allonge.

THEREFORE, Plaintiff Deutsche Bank Trust Company Americas’ Motion

 

3 Super. Ct. Civ. R. 56(c).

4Bul”khm‘l` v. Davi€S, 602 A.2d 56, 58-59 (Del. 1991).

5 Super. Ct. Civ. R. 56(0).

6 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

7 C€lOl‘€x Col”p. v. Ca!F€II, 477 U.S. 317, 322 (l986).
3

for Summary Judgment is hereby DENIED. Poston Defendants’ Motion for
Summary Judgment is hereby DENIED.

IT IS SO ORDERED.

d

ThMonoral§le Mary M. Johnston

 

