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