IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TRUMAN 2021 SC9 )
TITLE TRUST, )
)
)
Plaintiff, ) C.A. No. N19L-06-063 JRJ
)
v. )
)
DAVID DAVIS, )
)
Defendant. )
Date Submitted: March 10, 2023
Date Decided: March 29, 2023
ORDER
Upon consideration of Plaintiff Truman 2021 SC9 Title Trust’s (“Plaintiff”)
Motion for Summary Judgment, Defendant David Davis’ (“Defendant”) response
thereto, and the record in this case, IT APPEARS THAT:
(1) On March 25, 2004, Defendant1 executed a mortgage (“Mortgage”)
with Plaintiff,2 secured by a promissory note, against real property located at 2137
1
David Davis and Cheryl Ozlanski were co-defendants at the time of filing. Davis and Ozlanski
were co-owners of the Property and co-mortgagors. Ozlanski alleges that she has not lived at the
Property for years and claims that Davis is solely responsible for the Mortgage, and Davis does
not dispute this. See Ozlanski Answer ¶ 10, Trans. ID 64344244; Davis Answer, Trans. ID
67093178. During the pendency of this case, Ozlanski filed a quitclaim deed and successor in
interest forms, granting her entire interest in the Property, as well as her rights and responsibilities
under the Mortgage, to Davis. See Status Letter, Feb. 10, 2023, Trans. ID 69088682. On February
10, 2023, Ozlanski was dismissed from the case, leaving Davis as the sole Defendant. See Order
Granting Partial Stipulated Dismissal, Trans. ID 69127639.
2
IndyMac Bank was the nominal mortgagee at the time the Mortgage was executed. Compl., Ex.
F 2-15, Trans. ID 63379713. On January 10, 2010, IndyMac assigned its interest to OneWest
Veale Road, Wilmington, Delaware 19810 (the “Property”).3 The note secured a
loan of $129,500.00 plus interest to be paid monthly for a period of thirty years but
no later than April 1, 2034.4 Under the terms of the Mortgage, if Defendant failed
to make a payment when due and failed to cure the nonpayment within 30 days
thereafter, the mortgagee could accelerate all amounts due and foreclose upon the
property.5
(2) Plaintiff sent Defendant notice on January 9, 2019, advising him that
the Mortgage was in default due to a missed payment on October 1, 2019.6 The
Bank, FSB. Id. at 16. The Mortgage was then subsequently assigned four more times: from
OneWest Bank, FSB to Ocwen Loan Servicing, LLC; from Ocwen Loan Servicing, LLC to Ditech
Financial, LLC f/k/a Green Tree Servicing, LLC; from Ditech Financial, LLC f/k/a Green Tree
Servicing, LLC to New Residential Mortgage, LLC; and from New Residential Mortgage, LLC to
Select Portfolio Servicing, Inc. (“SPS”). See id. at 17-21. SPS, the original named Plaintiff, filed
the Complaint in this matter. On April 28, 2022, SPS assigned the Mortgage to Truman 2021 SC9
Title Trust (“TTT”), and on May 12, 2022, SPS filed a “Motion to Amend Plaintiff’s Name” asking
the Court to amend Plaintiff’s name from SPS to TTT, so TTT, as the holder of the Mortgage could
proceed under the case. Pl.’s Mot. to Amend Pl.’s Name, Ex. A, Trans. ID 67613608. The Court
granted the motion on May 18, 2022. Order Granting Mot. to Amend Pl.’s Name, Trans. ID
67632064.
3
Compl., Ex. F 2, Trans. ID 63379713.
4
Id. at 3.
5
The Mortgage states in pertinent part:
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to
acceleration following Borrower’s breach of any covenant or agreement in [the
Mortgage] . . . The notice shall specify: (a) the default; (b) the action required to
cure the default; (c) a date not less than 30 days from the date the notice is given to
Borrower, by which the default must be cured; and (d) that failure to cure the default
on or before the date specified in the notice may result in acceleration[,] . . .
foreclosure[,] . . . and sale of the [p]roperty.”
Id. at 12.
6
Pl.’s Mot. Summ. J., Ex. A, Trans. ID 69190034.
2
letter indicated that Defendant could cure the default upon the payment of $4,303.32
on or before February 25, 2019.7
(3) On June 19, 2019, Plaintiff filed a scire facias sur mortgage action (the
“Complaint”) against Defendant for failure to make mortgage payments.8 Defendant
filed his Answer on November 15, 2021.9 In response to nearly all of Plaintiff’s
allegations, Defendant stated, “[n]o dispute.”10 Accordingly, Plaintiff filed a Motion
for Summary Judgment with the Court on February 21, 2023.11
(4) 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.12 The
moving party bears the burden of establishing the non-existence of material issues
of fact.13 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.14 In considering a
Motion for Summary Judgment, the Court must view the record in a light most
favorable to the non-moving party.15 “The non-movant cannot create a genuine issue
7
Id.
8
Compl., Trans. ID 63379713.
9
Davis Answer, Trans. ID 67093178.
10
Id.
11
Pl.’s Mot. Summ. J., Trans. ID 69190034.
12
Super. Ct. Civ. R. 56(c).
13
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
14
Id. at 681.
15
Merrill v. Crothhall-American, Inc., 606 A.2d 96, 99 (Del. 1992) (internal citations omitted).
3
of fact with bare assertions or conclusory allegations, but must produce specific
evidence that would sustain a verdict in its favor.”16
(5) Under Delaware law, a party may seek foreclosure on a claim relating
to a mortgage or mortgage agreement through a scire facias sur mortgage action.17
The only defenses available in such an action “are limited to defenses to the
mortgagor’s obligations under the mortgage.”18 Thus, the only “appropriate defense
in a mortgage foreclosure action is a defense that is related to the terms of the
mortgage itself.”19
(6) The Court finds that there are no genuine issues of material fact in this
case. Davis has presented no evidence to show that he did not default on his monthly
mortgage payments. In fact, Davis expressly admits that he “[s]topped paying [the]
mortgage . . . in October 2018.”20 Davis’ evidence showing hardship does not create
an issue of material fact; rather, it supports his admission that he stopped paying the
mortgage. Furthermore, Davis does not dispute any of the allegations raised by SPS
in its complaint, nor does he raise a defense. Davis asks that no judgment be entered
16
Citimortgage, Inc. v. Stevenson, 2013 WL 6225019, at *1 (Del. Super. Nov. 26, 2013) (citing
Atamian v. Hawk, 842 A.2d 654, 658 (Del. Super. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)).
17
J.P. Morgan Chase Bank, Nat’l Ass’n v. Hopkins, 2013 WL 5200520, at *2 (Del. Super. Sept.
12, 2013).
18
B A C Home Loans Servicing LP v. Cunningham, 2016 WL 5937805, at *4 (Del. Super. Oct.
11, 2016) (quoting McCafferty v. Wells Fargo Bank, N.A., 2014 WL 7010781, at *2 (Del. 2014)).
19
Id.
20
Davis Answer ¶ 10; see also Davis Resp. ¶ 10, Trans. ID 69610859.
4
against him because his default was due to personal and business hardships.21
Accordingly, under the express terms of the mortgage, SPS was authorized to
accelerate the Mortgage and foreclose upon the property.
(7) Viewing the record in a light most favorable to Davis, there is no
genuine issue of material fact in dispute, and therefore, TTT is entitled to judgment
as a matter of law. For the foregoing reasons, Plaintiff Truman 2021 SC9 Title
Trust’s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
/s/ Jan R. Jurden
Jan. R. Jurden, President Judge
Original to Prothonotary
21
Davis Answer; see also Davis Resp.
5