SUPERIOR COURT
OF THE
STATE OF DELAWARE
RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5264
April 2, 2015
Daniel T. Conway, Esquire Carolyn Swift a/k/a Carolyn L. Swift
Atlantic Law Group, LLC 2021 Ashwood Run
512 East Market Street The Villages, FL 32162
Georgetown,DE 19947
Carolyn Swift a/k/a Carolyn L. Swift
112 Red Cedar Drive
Milton, DE 19968
RE: CitiMortgage, Inc. v. Carolyn Swift a/k/a Carolyn L. Swift
C.A. No.: S14L-07-015 RFS
Dear Counsel:
The Motion for Summary Judgment filed by Plaintiff is denied. Material
facts are disputed, and judgment may not be entered as a matter of law.
Plaintiff seeks entry of an order granting summary judgment; however,
material factual matters in dispute are apparent upon review of the record.
“[S]ummary judgment may not be granted when the record indicates a material
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fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in
order to clarify the application of law to the circumstances.” 1 When considering
the facts in the light most favorable to the non-moving party, 2 there are details set
forth in the answer, accompanying affidavits, and documents illustrating genuine
issues of material fact regarding an alleged deed in lieu of foreclosure. 3
Plaintiff contends Defendant’s bankruptcy proceedings may not protect
Plaintiff from an in rem action 4 such as the present scire facias action. 5 Even if
this is correct, questions may arise concerning whether a deed in lieu of foreclosure
was accepted by Plaintiff and whether adequate notice was provided regarding
Plaintiff’s alleged rejection of a deed in lieu of foreclosure. These contested issues
present genuine factual disputes and prevent this Court from entering an order
granting summary judgment.6
1
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del. Super. 1995).
2
Pullman, Inc. v. Phoenix Steel Corp., 304 A.2d 334, 335 (Del. Super. 1973) (discussing the
standard of review at the summary judgment stage).
3
Including a letter dated July 2, 2012 referencing a deed in lieu of foreclosure. See, Def.’s Aff.
Ex. A, No. 1(b).
4
See e.g., In re Mandehzadeh, 2014 WL 423609 (Bankr. E.D. Va. Feb. 4, 2014) (explaining “[a]
creditor's in personam and in rem rights are treated separately” because “[t]he in personam right
is eliminated by a discharge in bankruptcy” but “[a] discharge does not affect the in rem right”
which can "pass[] through bankruptcy unaffected by a discharge” (citing Branigan v. Davis (In
re Davis), 716 F.3d 331, 338 (4th Cir.2013)).
5
See, Quadrant Structured Products Co., Ltd. v. Vertin, 106 A.3d 992, 1009 (Del.) certified
question accepted, 980 N.Y.S.2d 379 (N.Y. 2013) and certified question answered, 992
N.Y.S.2d 687 (N.Y. 2014) (explaining “[i]f the borrower defaults, the bank can proceed in rem
by foreclosing on the mortgage, sue the borrower in personam on the promissory note, or both”).
6
Super. Ct. Civ. R. 56(c).
2
At this juncture, further inquiry is required and this case may not be
summarily resolved. For the foregoing reasons, Plaintiff’s Motion for Summary
Judgment is DENIED.
IT IS SO ORDERED
Very Truly Yours,
/s/ Richard F. Stokes
______________________________
Hon. Richard F. Stokes
cc: Prothonotary
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