56IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LSF9 Master Participation Trust )
)

Plaintiff(s) )

)

v. ) C.A. No. SlSL-12-002 MJB

)

)

Kevin J. McKinney, Sr. and )
Michael D. Satchell )
aka Michael Satchell )
)

Defendant(s) )

Submitted: August 16, 2017
Decided: November 30, 2017

Upon Defendant’s Motion to Vacate SherW’s Sale, DENIED.
OPINION
Daniel T. Conway, Esq., ORLANS PC, 512 East Market Street, Georgetown, Delaware 19947,

Attorney for Plaintiff(s) LSF9 Master Participation Trust.

Kevin J. McKinney Sr., 1233 N. Andrews Ave., Fort Lauderdale, Florida 33311,pr0 se, and
Michael D Satchell, 21117 Laguna Drive, Rehoboth Beach, Delaware 19971, pro se, Defendants.

BRADY J.

PROCEDURAL BACKGROUND

On December 2, 2015, Plaintiff filed a residential foreclosure action against the
Defendants, regarding the real property located at 21117 Laguna Drive, Rehoboth Beach,
Delaware 19971 (“Property”). The Complaint alleged the Defendants failed to pay the monthly
installments in accordance with the Mortgage. An Affidavit in Support of Amounts Due was
attached to the Complaint, indicating that the total amount owed at the commencement of the
foreclosure action, was $304,355.17. The action was initially filed as Mediation Eligible.l
lnitial Summons for service were returned as “non-est” by the Sussex County Sheriff. Service
on the Defendants was perfected by posting the property and by certified mail, return receipt
requested, to the Property and to Sawgrass Community Association through the property
management company. The return receipt for the Property was signed on December 21 , 2015 by
an individual by the name of Cheryl DiFonZo. The receipt for the Sawgrass Community
Association was signed on December 30, 2015. Plaintiff discovered the property Was not
occupied by the Defendants through Sherif`f’s Retums of the summons. Accordingly, on March
8, 2016, Plaintiff moved to have this case removed from the Automatic Residential Mortgage
Foreclosure Mediation Pro gram pursuant to Administrative Directive 2013-2, that a property
must be owner occupied to be subject to the Mediation Program. Copies of Plaintiff’s request
were sent to the Property and to Defendants’ address in Florida on March 3, 2016.2 Plaintiff’s
request was approved on April 8, 2016. Defendant Michael Satchell filed notice in this Court
that he had filed for bankruptcy in the United States Bankruptcy Court for the Southem District

of Florida.3 On August 25, 2016, Defendant, Michael D. Satchell’s Chapter 7 Bankruptcy matter

 

' The Property was later determined to be ineligible for mediation because it was not owner occupied.
2 CertiHcate of Service attached to Request to Program Administrator to Remove Case from Automatic Residential

Foreclosure Mediation Program, Docket 5 (Mar. 8, 2016).
3 Following Defendant’s filing in this Court, the action Was placed on the Bankruptcy Dormant Docket.

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was closed, and the foreclosure action resumed. On February 7, 2017, an entry of judgment by
default was ordered by this Court as neither Defendant had filed an Answer to the Complaint.
On April 27, 2017, Plaintiff initiated the Sheriff’s Sale process by filing a writ of levari
facias. The Sussex County Sheriff exposed the Property to public auction on July 18, 2017.
There were no third party bidders, and the Property reverted to Plaintiff for $332,912.00. On
August 10, 2017, before the confirmation of sale which was scheduled for August 25, 2017,

Defendants filed an “Answer to the Complaint,” requesting the Court to set aside the Sheriff’s

Sale.

PARTIES’ CONTENTIONS

Defendants assert that the only correspondence that they received concerning this matter
was the receipt of Notice to Lien Holders, Tenants Etc, filed on July 13, 2017, informing the
parties of the Sheriff’s Sale scheduled on July 18, 2017. Defendants claim they were “unaware
of any allegations to this Plaintiff,” and they have not received a Notice of lntent to Foreclose.4
Defendants allege they were not aware of any Affidavit in Support of Amounts Due. Defendants
claim that they entered into a “Relocation lncentive Pro gram Agreement” with the servicing
agent, Caliber Home Loans. Defendants state they are “aware that the Plaintiff(s) has many
pending law suits, Class action suits, AG investigations, etc.” Defendants request the Court to
set aside the Sheriff’s Sale.

Plaintiff contends that rules and regulations governing scire facias foreclosure actions

were followed. The Service of Complaint was perfected by the Sheriff pursuant to Rule 4(f)(4),

 

4 Defs.’ Ans. To Allegations of the Compl. (August 10, 2017) (herein as “Defs’ Ans.”).
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and the Defendants raised no allegations that would call into question the validity of the Sheriff’ s

Sale.5 Plaintiff requests the Court confirm the Sheriff’s Sale.

DISCUSSION

Delaware Superior Court Civil Rule 69(d) provides:
Retum of sheriff’ s sales of real estate shall be made on the third Monday of the month
succeeding the date of the sale and applications to set aside such sales shall be made on

or before the first Thursday succeeding said return date, and all such sales not objected

to on or before the first Thursday, shall on the first Friday, be confirmed as a matter of

course.6

In the event such sales are objected to, this Court’s review of the Sheriff’ s Sale is limited to only
examining whether the defaulting obligor has received just treatment in the execution process.7
ln determining whether to set aside the Sheriff’ s Sale, this Court considers whether there were
defects in matters such as service of process, the advertisement of the sale, and description of
property in the levy, and whether the price obtained was an “inadequacy of price sufficiently
great to shock the sense of the Court.”8 This Court does not have “de novo power to set aside the
sale for whatever reason the Court pleases.”9

The Court has reviewed the record and finds no deficiencies in the execution process; no
defects in the service of process, advertisement of sale, and description of the property; and no
evidence that the price obtained for the property Was so inadequate that shock the sense of the
Court. This foreclosure action on Defendants’ Property was commenced in December 2015.

The record shows personal service was attempted, in accordance to Delaware Rules, more than

 

5 Pl.’s Opp’n to Defs.’ Req. to Vacate Sale, (August 16, 2017) (herein as “Pl’s Resp.”)

6 Super. Ct. Civ. R. 69(d) (2017).

7 Matter ofSpencer, 115 B.R. 471, at 482 (D. Del. 1990).

8 Ia'. (citing Home Benefl`cial Life Ins. Co. v. Blue Rock Shopping Center, lnc., 379 A.2d ll47, 1149 (Del. Super. Ct.
1977); McNatt v. Colesgrove, 445 A.2d 336 (Del. 1981); Atlas Subsidiaries of Delaware, Inc., v. Bums, 202 A.2d
566 (Del. 1964); and In re Downham Co., 165 A.152, 153 (Del. Super. Ct. 1932).

9 Id.

once to no avail, and Service was ultimately perfected by posting on the property and sending
certified mail, return receipt requested. 10 Defendants did not file an Answer to the Complaint. lt
is clear however, that Defendant Michael Satchell was aware the action was pending in this
Court as he mailed to this Court a Notice of Chapter 7 Bankruptcy on May 3, 2016. The Court
rejects Defendants’ claim that they were unaware of the pending foreclosure action. The fact
that Defendant Michael Satchell sent this Court a notice of his Bankruptcy case is proof that at
least he was aware of this foreclosure action. However, neither Defendant chose to take action to
defend the case until a Sheriff’ s Sale had already been conducted.

lt appears Defendants attempt to make an argument that the mortgage company engaged
in fraudulent practices, a matter outside the scope of this Court’s review of a Sheriff’s Sale. ll
Defendants have attached several articles inferring general claims of fraudulent conduct by the
Plaintiff`. Defendants make no particularized allegation that Plaintiff committed any misconduct
in this mortgage transaction or foreclosure action. Defendants attached documents from Caliber
Home Loans, and imply some impropriety by the Plaintiff based on the fact that Plaintiff’ s
attorney was unaware of the fact that Defendants allegedly entered into a “Relo cation lncentive
Pro gram Agreement.” Defendants believed the Agreement either delayed or stayed the
foreclosure action. However, the documents submitted by the Defendants indicate that their

foreclosure action would not be delayed or stayed unless there is a ratified alternative agreement

 

10 See Super. Ct. Civ. Pro. R. 4(f)(4).

" CitiMortgrzg ?, Inc. v. Bishop, 2013 WL 1143670, *5 (Del. Super. Ct. Mar. 4, 2013). The defenses to a mortgage
foreclosure action are limited and only those claims or counterclaims arising under the mortgage may be raised.
“Delaware courts recognize the defenses of payment, satisfaction or avoidance. ‘A plea of avoidance must ‘relate
to the mortgage sued upon, i.e. the plea must relate to the validity or illegality of the mortgage documents ” These
include acts of God, assignment, conditional liability, duress, exception, forfeiture, f`raud, illegality, justification,
non-performance of condition precedents, ratification, unjust enrichment and Waiver.” (citation omitted).

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that would otherwise affect their mortgage obligations.12 No such agreement Was provided by

the Defendants. The Court finds no legal basis to set aside the Sheriff’s Sale.

CONLUSION
For the aforementioned reasons, Defendant’s Motion to Vacate Sheriff’s Sale is

DENIED. Accordingly, the Sheriff’s Sale is hereby CONFIRMED.

IT IS SO ORDERED.

Howwa

M. JaneU
SuperiorU rt yJudge

 

12 Exihibits, Letter from Caliber Home Loans to Defendant Kevin McKinney, dated Nov. 16, 2016.
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