IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
Bank of America, N.A.,
Plaintiff,
C.A. No. Nl6L-01-060 JRJ
V.
David P. Ireland,
Defendant.
Date Submitted: April 13, 2017
Date Decided: June 23, 2017
ORDER
Upon consideration of Plaintiff Bank of America, N.A.’s Motion for
Summary Judgment, Defendant David P. Ireland’s Opposition thereto, and the
record in this case, IT APPEARS THAT:
1. On May 13, 2009, Defendant David P. Ireland executed a mortgage (the
“Mortgage”) securing a promissory note against real property located at 1016
Coyne Place, Wilmington, Delaware 19805.l The nominal mortgagee, Mortgage
Electronic Registration Systems, Inc., subsequently assigned the Mortgage to the
lender, Plaintiff Bank of America, N.A. (“BoA”).2
2. On January 15, 2016, BoA filed a scire facias sur mortgage action (the
“Complaint”) against Ireland.
l Complaint, Ex. E (Trans. ID. 58433754).
2 Complaint, Ex. F.
3. On May 4, 2016, BoA and Ireland conducted a foreclosure mediation
conference.3 The dispute was not resolved, and the parties scheduled an additional
mediation conference for June 1, 2016.4 The Continuing Mediation Record filed
after the May 4, 2016, mediation conference indicated that Ireland is not eligible
for a loan modification or repayment plan, but must either reinstate the loan or
pursue non-retention options.5
4. On June 1, 2016, the parties attempted mediation again, without success.6
The Final Mediation Record indicates that the mediation failed because Ireland is
7 BoA agreed to not seek default
only eligible for reinstatement of the loan.
judgment before July 1, 2016, and on June 30, 2016, Ireland filed an Answer to the
Complaint, asserting two defenses: (l) Ireland is ready, willing and able to cure the
deficiency but BoA refuses to allow him to cure; and (2) Ireland “demands . . . the
right to inspect the original promissory note.”8 In an affidavit attached to his
Answer, Ireland acknowledges that he failed to make payments but offers to
increase the monthly payments to “catch up.”9 Further, Ireland explains that he
offered an immediate payment of $5,000.00 during mediation, which was refused
3 Notice of Scheduled Foreclosure Mediation Conference (Trans. ID. 58826645).
4 Continuing Mediation Record (Trans. ID. 58961047).
5
Id.
6 Final Mediation Record (Trans. ID. 59090902).
7
Id.
8 Answer 1111 9-10 (Trans. ID. 59219308).
9 AnsWer, Defendant’s Affidavit Pursuant to 10 Del. C. § 3901(a) (“Affidavit”).
2
by BoA.10
5. On August 4, 2016, BoA issued a reinstatement letter to Ireland which set
forth a calculation of $14,027.57 to cure the default and reinstate the loan.ll This
reinstatement letter stated that the calculation was good only through September 2,
2016.12 Ireland was unable to secure funding until October 13, 2016.13
6. On October 13, 2016, Counsel for Ireland informed BoA that Ireland had
secured a $15,000.00 loan,14 BoA issued an updated reinstatement letter requiring
a payment of $16,195.04 to cure the default.15 This reinstatement calculation was
good through October 31, 2016.16 Ireland was unable to cure the default.
7. On February 15, 2017, BoA filed the instant Motion for Summary
Judgment. BoA argues that Ireland has neither tendered, nor indicated an ability to
tender, the amount due to cure the default and reinstate the loan, and has otherwise
failed to plead an allowable defense to a scire facias sur mortgage action.17
8. In response, Ireland continues to assert he has been denied his right to
cure the default and reinstate the loan under 10 Del. C. § 5062B(a)(3)b.4.18 Ireland
1° ld.
ll Defendant’s Answer to Motion for Summary Judgment (”Response”), Ex. A (Trans. ID.
60447733).
12 Id.
13 Response, Ex. C.
14 Id.
15 Response, Ex. B.
16 Id.
17 Plaintiff s Motion for Summary Judgment (“Motion”) 1[ 16 (Trans. ID. 60217511).
18 Response 1111 l and 2. 10 Del. C. § 5062B(a)(3)b.4 states: [The notice of intent to foreclose
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does not contest the amount due, but claims that BoA should be required to allow
the escrow deficiency to be cured through increased monthly payments following
reinstatement.19 Although Ireland alleges in his Answer that he has never seen the
original promissory note, and demands to inspect the original promissory note for
the referenced loan as a defense, 20 he has not argued this purported defense in his
Response to BoA’s Motion for Summary Judgment and has not made any formal
discovery request to inspect the promissory note.21
9. Summary judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.22 The
moving party bears the burden of establishing the non-existence of material issues
of fact.23 Once such a showing is made, the burden shifts to the non-moving party
to demonstrate that there are material issues of fact in dispute.24 In considering a
Motion for Summary Judgment, the Court must view the record in a light most
shall] [c]ontain a statement, as of the date of the notice, of the nature of the default, the amount
required to cure the default and reinstate the loan, including all past due payments, penalties, and
fees, and any other actions the homeowner must take to cure the default.
19 Affidavit11 1. BoA’s internal policy, as stated in the August 2016 reinstatement letter, states
that after reinstatement “an escrow analysis will be performed on the account and, if any escrow
shortage exists, the regular monthly payments will be increased to eliminate this
shortage.” However, if a deficient escrow balance has already been calculated and included in
the reinstatement calculation, BoA requires that amount be paid in full as a condition of
reinstatement
20 Answer 11 10.
21 Motion 11 10.
22 super. Ct. Civ. R. 56(¢).
23 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
24 ld. at 681.
favorable to the non-moving party.25 “The non-movant cannot create a genuine
issue of fact with bare assertions or conclusory allegations, but must produce
specific evidence that would sustain a verdict in its favor.”26
10. Under Delaware law, “only claims that arise under the mortgage
agreement subject to foreclosure can be asserted in a scire facias sur mortgage
27 . .
” and “a mortgagor’s defenses in a mortgage foreclosure action are
action,
limited to defenses to the mortgagor’s obligations under the mortgage.”28 “In other
words, the appropriate defense in a mortgage foreclosure action is a defense that is
related to the terms of the mortgage itself.”29
ll. In his affidavit accompanying the Answer, Ireland acknowledges that he
stopped making mortgage payments to BoA. His only purported defense is BoA’s
alleged refusal to allow Ireland to cure, but Ireland has never tendered the full
deficiency amount to BoA. At oral argument, Ireland argued_for the first time-
25 Mem'll v. Cro¢hall_American, lnc., 606 A.2d 96, 99 (Del. 1992) (intemai citations omitted).
26 cizimorzgage, ma v. S¢evenson, 2013 wL 6225019, at *i (Del. super. Nov. 26, 2013) (ciring
Atamfan v. Hawk, 842 A-2d 654, 658 (Del. Super. 2003)).
21 J.P. Morgan C;mse Bank, Naz’l Ass ’n v. Hopkms, 2013 wL 5200520, at *2 (Del. Super. sept.
12, 2013) (citations omitted).
22 B A C Home Loans Servicing LP v. Cunningham, 2016 wL 5937805, at *4 (Del. super. oct.
11, 2016) (quoting McCajérzy v. We!ls Fargo Bank, N.A., 2014 WL 7010781, at *2 (Del. 2014)).
29 Ia'. Delaware courts only recognize the defenses of payment, satisfaction, or a plea in
avoidance. J.P. Morgan, 2013 WL 5200520, at *2. A plea in avoidance must “relate to the
mortgage sued upon, i.e., the plea must relate to the validity or illegality of the mortgage
documents” and includes: “acts of God, assignment, conditional liability, duress, exception,
forfeiture, fraud, illegality, justification, non-performance of condition precedents, ratification,
unjust enrichment and waiver.” Ia'. (first quoting Davenport Ser'vs., Inc., v. Five N. Corp., 2003
WL 21739066, at *3 (Del. Super. May 19, 2003); and then quoting Citimortgage, Inc. v. Bishop,
2013 WL 1143670, at *5 (Del. Super. Mar. 4, 2013)).
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that the reinstatement amounts may not be correct. However, “[n]ew legal
arguments cannot be presented for the first time at oral argument.”30
12. Viewing the record in a light most favorable to Ireland, there is no
genuine issue of material fact in dispute, and therefore, BoA is entitled to judgment
as a matter of law. For the foregoing reasons, Plaintiff Bank of America, N.A.’s,
Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
LM/&ur@$w§ident Judge
30 1a re Naz’l Ci¢y corp s’holders Lm'g., 2010 wL 2585282, at *2 (Dei. 2010) (citing Roca v_
E.I. a'u Pont de Nemours & Co., 842 A.2d 1238, 1242-43 (Del. 2004)).
6