       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                         )
                                         )
 MICHELLE R. IEVOLI,                     )
                                         )
       Plaintiff,                        )     C.A. No. N18C-05-254 CLS
                                         )
              v.                         )
                                         )
 DELAWARE STATE HOUSING                  )
 AUTHORITY,                              )
                                         )
       Defendant.                        )
                                         )
                                         )




                       Date Submitted: August 16, 2018
                       Date Decided: November 7, 2018

                       On Defendant’s Motion to Dismiss
                                   Granted.




Michelle R. Ievoli, Pro Se. PO Box 263, Litchfield, ME, 04350.


Benjamin P. Chapple, Esquire. Reed Smith LLP, 1201 Market Street, Suite 1500
Wilmington, DE, 19801. Attorney for Defendant


Scott, J.
       In order to succeed in a negligence action a plaintiff must overcome certain

procedural hurdles to survive a Motion to Dismiss the Complaint. Following a

foreclosure action Plaintiff filed a separate negligence action against the mortgage

holder claiming injuries sustained as a result of the mortgage servicer’s actions. The

issue before the Court is whether Plaintiff has brought her action within the statute

of limitations, and pleaded with sufficient particularity an action for negligence.

                         Facts and Procedural Background

       The complaint before the Court was filed by Plaintiff on May 29, 2018. Prior

to this action Plaintiff has had at least two prior actions before the courts in this state

which are relevant. In 2008, Plaintiff filed for bankruptcy in the United States

Bankruptcy Court for the District of Delaware. That action was dismissed for failure

to make plan payments.1 In 2015, the Delaware State Housing Authority (DSHA)

initiated a foreclosure action on Defendant’s home before this Court. A final

judgment in favor of DSHA was entered on September 25, 2017. Plaintiff did not

appeal that judgment. After the Sheriff’s Sale of the property in the foreclosure

action, DSHA sought and was granted a Writ of Possession on May 29, 2018, with

no action to be taken for 60 days. Also on May 29, 2018, Ievoli filed her pro se

complaint in this Court claiming Negligence on the part of DSHA related to the


1
 PACER Case Summary for Delaware Bankruptcy Court Case Number 08-12359
for Michelle Ievoli.
                                            2
mortgage of the property. At the same time of filing the Complaint Ievoli requested

a stay on the writ of possession. This request was denied. On July 23, 2018, Ievoli

filed an emergency request seeking a continuance of the stay on the Writ of

Possession pending adjudication of this action. The request for an emergency stay

was also denied.

                                   Parties Assertions

        Before the Court is Plaintiff’s Complaint against DSHA, DSHA’s Motion to

Dismiss, and Plaintiff’s response. Plaintiff’s complaint seeks monetary damages for

mortgage payments she was precluded from making during the foreclosure process,

physical and emotional distress, lost wages, and legal expenses.2

        Plaintiff simply claims negligence on the part of DSHA.     The Complaint

appears to claim DSHA was negligent in its selection and supervision of Bank of

America (BOA) as Plaintiff’s mortgaging servicer. Plaintiff highlights newspaper

articles and judgments against BOA as proof DSHA had notice of questionable

practices ongoing with BOA’s mortgage business. Specifically, Plaintiff indicates a

consent judgment wherein BOA confessed to illegal actions gave notice to

Defendant of wrongdoing, and thereafter Defendant’s continued relationship with

BOA was negligent. Plaintiff claims DSHA owed a duty “to be aware of the legal



2
    Compl. at 6.
                                         3
proceedings and the ongoing Sigtarp investigations and monitoring” and that failure

to take action amounts to gross negligence.3 Plaintiff’s claim seeks to hold DSHA

liable for its BOA’s actions. Plaintiff claims DSHA owed a duty, to oversee BOA’s

actions in servicing her mortgage, and was “responsibly negligent” for allowing

BOA to continue in its role as a “subcontractor” for DSHA.4

          Plaintiff’s other claims include the fact BOA misspelled her surname at some

time, resulting in negative credit reporting, leading to substantial emotional distress

and expenditure of energy to correct, and issues with a proof of claim filed with her

claim for bankruptcy. Plaintiff finally prays upon the Court to indicate the proper

venue for her claims for relief.

          Defendant’s Motion to Dismiss is based on four arguments: 1) the Complaint

is untimely, therefore barred by the statute of limitations, 2) the complaint fails to

articulate a viable claim for relief, 3) allegations in the Complaint that mortgage

payments were made under the loan, or that the foreclosure action was illegal needed

to be raised in the foreclosure action, and therefore have been waived, and 4) any

claims for damages based on the foreclosure is barred by the doctrines of res judicata

and collateral estoppel.




3
    Compl. at 6.
4
    Id.
                                            4
                                    Standard of Review

        The test for dismissal under Superior Court Rule 12(b)(6) is whether the

Plaintiff may recover under any reasonably conceivable set of circumstances

susceptible of proof under the complaint.5 In making its determination, the Court

must accept all well-pleaded allegations in the complaint as true and draw all

reasonable factual inferences in favor of the non-moving party.6 Therefore, if the

Plaintiff can recover under any conceivable set of facts inferable from the pleadings,

the motion to dismiss will not be granted.7

                                         Discussion

        Before a review of the merits of Plaintiffs claim, a review of procedural bars

is necessary. Defendant argues the statute of limitations bars all of Plaintiff’s claims.

The “statute of limitations” establishes a time limit for suing in a civil case, based

on the date when an injury occurred or is discovered.8 The purpose of the statute of



5
 Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic
Capital Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012) (citing Cent.
Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537
(Del. 2011)).
6
 Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del.1998); Nix v. Sawyer, 466
A.2d 407, 410 (Del. Super. Ct.1983).
7
 Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent.
Mortg., 27 A.3d at 537).
8
    Black’s Law Dictionary (8th ed. 2005).
                                             5
limitations is “to require diligent prosecution of known claims, thereby providing

finality and predictability in legal affairs and ensuring that claims will be resolved

while evidence is reasonably available and fresh.”9

         Reviewing the complaint in light most favorable to Plaintiff, 10 Del. C. §8106

applies to the circumstances of this case. Under the statute “no action based on a

detailed statement of the mutual demands in the nature of debit and credit between

parties arising out of contractual or fiduciary relations, […] shall be brought after

the expiration of 3 years from the accruing of the cause of such action.”10 It is well

settled that “the statute of limitations here involved begins to run at the time of the

wrongful act, and, ignorance of a cause of action, absent concealment or fraud, does

not stop it.”11

         Plaintiff’s Complaint contains various dates pertinent to her claims. She

indicates a Note for her home was executed in 2001, BOA became the servicer for

her loan in 2008. Plaintiff indicates issues with a bankruptcy proof of claim filed in

2009, the misspelling of her surname 2010 which was eventually corrected in 2012.

Plaintiff alleges DSHA prevented her bankruptcy payment plan from continuing,




9
    Blacks’s Law Dictionary (8th ed. 2005).
10
     10 Del. C. § 8106.
11
     Isaacson, Stolper & Co. v. Artisans' Sav. Bank, 330 A.2d 130, 132 (Del. 1974).
                                            6
resulting in its dismissal.12 Plaintiff indicates a newspaper article from 2013 was

sufficient to give DSHA notice of BOA’s negligent actions as to her as an individual.

         The Complaint further alleges “Since 2010” Plaintiff has been in “fear of

impending sheriff’s sales” and in “fear of finding herself removed from home

illegally.”13 Finally, the Complaint states a payment plan between BOA and Plaintiff

was approved in 2014, and that payments were made through November, 2014, after

which BOA “Refuse to produce a contract which listed DSHA.”14 Finally, Plaintiff

claims she suffered a nervous breakdown in June, 2015, “related to the depression,

anxiety, and PTSD caused by the decade-long fight for housing justice.”15

         The Complaint alleges DSHA and BOA’s actions dating from 2009 through

November of 2014 constituted negligence on the part of DSHA.                  Accepting

Plaintiff’s allegations as true for the purpose of this motion, the three-year statute of

limitations required any action based on DSHA’s negligence to be brought before

November 2017.




12
  As the bankruptcy action was dismissed on May 11, 2010, the Court will use that
date for DSHA’s alleged wrongful action.
13
     Compl. at 5, 6.
14
     Compl. at 5.
15
     Compl. at 6.
                                           7
         Moving to the merits of the Complaint, Superior Court Civil Rule 9(b)

requires allegations of negligence to be stated with particularity. 16 An acceptable

pleading of negligence must include at a minimum: (1) what duty, if any, was

breached; (2) who breached it, (3) what act or failure to act breached the duty, and

(4) the party upon whom the act was performed.17 The Court determines as a matter

of law whether a party owes another a duty.18

         Plaintiff asserts DSHA was negligent in its contracting BOA to serve as an

independent contractor in servicing her mortgage. The pleadings allege DSHA and

Plaintiff engaged in a lender/borrower relationship. The Complaint further alleges

DSHA owed a duty to be aware of ongoing litigation involving BOA throughout the

country, and to take action based on that information. This assertion appears to claim

DSHA owed a duty to act to protect Plaintiff’s interests. This would properly be

characterized as a fiduciary relationship, where a duty was owed by DSHA to act in

Plaintiff’s interests.    A fiduciary duty is “a duty of utmost good faith, trust

confidence, and candor owed by a fiduciary to the beneficiary; a duty to act with the




16
     Super. Ct. Civ. R. 9 (b).
17
     Myer v. Dyer, 542 A.2d 802, 805 (Del. Super. Ct. 1987).
18
  Spence v. Cherian, 135 A.3d 1282, 1290 (Del. Super. Ct. 2016), as corrected
(May 25, 2016).
                                          8
highest degree of honesty and loyalty toward another person and in the best interests

of the other person.”19

         Under Delaware law, “there is no fiduciary duty relationship between a debtor

and a creditor, i.e., also a mortgagee and a mortgagor and, therefore, there can be no

breach of a fiduciary duty claim.”20 The Complaint claims DSHA owed a fiduciary

duty to Plaintiff, however, no such duty exists. Therefore, Plaintiff’s claim must fail

as a matter of law.

         Finally, Plaintiff’s response to the Motion to Dismiss includes a prayer for

direction to the proper venue for her claims. To the extent Plaintiff alleges she made

payments towards the mortgage, or that the foreclosure process was somehow

flawed, those claims are barred in this action under the doctrine of res judicata. Res

judicata prevents the same parties from bringing a suit subsequent to a previous suit

based on the same cause of action.21 Those issues should have been raised in the

foreclosure proceedings previously adjudicated before this Court.22 The same is true

for claims that DSHA interfered with Plaintiff’s bankruptcy plan. These issues



19
     Black’s Law Dictionary (8th ed. 2005).
20
  Diehl-Guerrero v. Hardy Boys Constr., LLC., 2017 WL 886786, at *2 (Del.
Super. Ct. Feb. 28, 2017), appeal refused sub nom. Diehl-Guerrero v. Wells Fargo
Home Mortgage, Inc., 159 A.3d 302 (Del. 2017).
21
     State v. Machin, 642 A.2d 1235, 1238 (Del. Super. Ct. 1993).
22
     DSHA v. Ievoli, C.A.No. N15L-12-074 CLS.
                                           9
should have been addressed before the United States Bankruptcy Court for the

District of Delaware.

                                         Conclusion

         While Pro se litigants are afforded more leeway in their filings, a Complaint

must meet certain specific requirements.23 The Complaint asserts various actions by

BOA caused her injury, and that Defendant was negligent for failing to take action

to address those actions.       To support this claim Plaintiff points out various

judgments, consent orders, and other litigation throughout the country related to

banks and wrongdoing during the mortgage crisis that began nearly ten years ago.

However, Plaintiff fails to indicate how those proceedings caused or are otherwise

relevant to her injury, and what duty DSHA owed to her as an individual as a result.

Additionally, Plaintiff’s claims are procedurally barred by either the 3-year statute

of limitations, or the doctrines of res judicata and collateral estoppel.

         For the foregoing reasons, Defendant’s Motion to Dismiss is Granted.

         IT IS SO ORDERED.




                                                      /s/ Calvin L. Scott
                                                      Judge Calvin L. Scott, Jr.


23
     See; In re Estate of Hall, 882 A.2d 761 (Del. 2005).
                                           10
