IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WELLS FARGO BANK, NA, C.A. No. NlSL-02-036 AML
Plaintiff, NON-ARBITRATION
In Rem
Sci. Fa. Sur Mortgage Action
Mortgage Record 20080421-0026997
Parcel No. 26-022.10-284
V.
WILMA J. FORREST and
DERWIN G. FORREST,
Defendants.
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Submitted: June 19, 2017
Decided: June 22, 2017
ORDER
Plaintiff’s Motion for Summary Judgment: GRANTED
This 22nd day of June, 2017, upon consideration of the record in this matter,
the submissions of the parties, and the applicable law, it appears to this Court that:
l. This is a scire facias sur mortgage foreclosure action filed on
February l4, 2015 by the plaintiff, Wells F argo Bank, NA (“Wells Fargo”), against
Wilma and DerWin Forrest (collectively, the “Forrests”), Who own the subject
property at 623 East 22nd Street, Wilmington, Delaware (the “Property”). In the
complaint, Wells Fargo alleged the Forrests executed and delivered a mortgage on
the Property to American Mortgage NetWorl<, Inc., that mortgage Was assigned to
Wells Fargo,l and the Forrests failed to (i) make the required monthly payments
under the mortgage, and (ii) cure their default despite notice and an opportunity to
do so. Wells Fargo therefore alleged it was entitled to judgment on the mortgage2
2. The Forrests answered the complaint and initially asserted a number
of affirmative defenses, including that Wells Fargo (i) lacked standing because it
was not in possession of the original note,3 (ii) failed to properly accelerate the
mortgage before filing the foreclosure action, and (iii) failed to provide the
required notice of intent to foreclose.
3. Wells Fargo initially moved for summary judgment on March 17,
2016, but later withdrew that motion because the Forrests had been offered “a trial
payment plan” in an effort to resolve the foreclosure action.4 On September 16,
2016, Wells Fargo refiled its motion for summary judgment, but in November
2016, shortly before the hearing on the motion, Wells Fargo and the Court received
notice that the Forrests had filed for bankruptcy. This case therefore was
transferred to the bankruptcy dormant docket until February 2017, when the
Forrests’ bankruptcy action was closed.5
‘ Compi. 1111 1-2.
2 ld. 11 5.
3 Although the note was not included as an exhibit to the complaint, Wells Fargo later
supplemented the record to include that instrument in light of the Delaware Supreme Court’s
ruling in Shrewsbury v. Bank 0fN. Y. Mellon, 2017 WL 1374746, at *5 (Del. Apr. 17, 2017).
4 D.1.32.
5 D.1.40,41.
4. Wells Fargo then re-noticed the summary judgment motion for June 2,
2017. The Forrests did not file any opposition to the motion, aside from filing a
letter addressed to Wells Fargo’s counsel seeking settlement or a payment
agreement to reinstate the mortgage on the Property.6 Due to a scheduling conflict,
the Court rescheduled the motion to June 19, 2017. On June 15, 2017, the Forrests
filed a “Motion Set Postpone Summary Judgment,” asserting they were working
with Wells Fargo’s loss mitigation department to reinstate the mortgage The
Forrests therefore asked the Court to defer ruling on the summary judgment motion
until August 1, 2017.7 The Court informed the parties that the hearing would
proceed on June 19th as scheduled, but the Forrests could present at that time
evidence of their loss mitigation efforts.8
5. At the hearing, as in its motion for summary judgment, Wells Fargo
sought judgment as a matter of law because the affirmative defenses raised by the
Forrests either were not supported by the record or did not present valid defenses
in a scire facias sur mortgage action. In response, the Forrests did not contest
Wells Fargo’S arguments, but instead simply sought a 90-day stay of the judgment
so they would have additional time to explore loss mitigation efforts with Wells
6 D.l. 44.
7 D.l. 48.
8 D.I. 49.
Fargo. Upon the Court’s inquiry, the Forrests expressly denied opposing the
summary judgment motion on any basis other than their loss mitigation efforts.
6. lt is plain from the record, and the Forrests do not dispute, that Wells
Fargo is entitled to summary judgment None of the affirmative defenses raised by
the Forrests in their answer to the complaint preclude entry of judgment as a matter
of law. Specifically, Wells Fargo provided proof that the mortgage and note were
assigned to it, its demand letter properly accelerated the debt, and the Forrests’
contention that Wells Fargo failed to provide the statutorily-required notice of
intent to foreclose fails because the Property was not owner-occupied and therefore
notice was not required under 10 Del. C. § 5062B(a)(1).
7. The only remaining question, therefore, is whether this Court should
postpone entering judgment, or stay execution of judgment, to allow the Forrests to
pursue loss mitigation efforts. Although such relief might be warranted in certain
cases, it is not warranted here. Resolution of this motion has been delayed more
than a year while the Forrests pursued a trial payment plan and bankruptcy.
Although the Court appreciates the Forrests’ continued efforts to save their
Property, further delay is not appropriate in these circumstances Moreover, the
Forrests may continue to pursue loss mitigation even after judgment is entered by
this Court, up to the point that the Property is sold at sheriff’ s sale. For those
reasons, the Forrests’ request to further stay these proceedings is DENIED.
AND NOW, for the foregoing reasons, Wells Fargo’s Motion for Summary
Judgment is GRANTED. Wells Fargo SHALL file within 10 days a revised
proposed order containing updated figures for the amount of the judgment, IT IS
aim §§ "/
Abigai~l>I\/f.`Lerow, llldge
SO ORDERED.
Original to Prothonotary
cc: Melanie J. Thompson, Esquire
Wilma J. Forrest, pro se (Via U.S. First Class Mail)
Derwin G. Forrest, pro se (via U.S. First Class Mail)