Opinion
C.A. No. 06C-06-041 ESB.
July 7, 2006.
DECISIONS ON MOTION TO PROCEED IN FORMA PAUPERIS AND UPON REVIEW OF COMPLAINT
1) Pending before the Court is a motion to proceed in forma pauperis which plaintiff David J. Buchanan ("plaintiff") has filed in connection with the above-captioned complaint.
2) Plaintiff's filings in support of his motion to proceed in forma pauperis establish he is indigent. Consequently, the Court grants his motion to proceed in forma pauperis. The Court now is required to review the complaint and allow the litigation to proceed only if it finds the action is not legally frivolous. 10 Del. C. § 8803(b).
3) Plaintiff originally filed a complaint in the Court of Chancery which apparently made the same allegations as are contained in the pending matter. Buchanan v. Buchanan, Del. Ch., C.A. No. 2190, Chandler, C. (May 31, 2006). That Court ruled that Superior Court and not this Court has jurisdiction over the matter.
4) On June 27, 2006, plaintiff filed the pending complaint. In that complaint, he asserts the following.
He and Barbara H. Buchanan ("defendant") were divorced on August 6, 2003. On or about March 18, 2003, defendant filed a petition with the Family Court to list and sell the parties' real estate.
On July 28, 2004, the mortgage holder on the marital home filed foreclosure due to nonpayment of the mortgage. The Court takes judicial notice of this foreclosure action filed with this Court,Mortgage Electronic Registration Systems, Inc. v. Buchanan, Del. Super., C.A. No. 04L-06-001.
The proceedings have been stayed due to plaintiff's filing of a bankruptcy petition. The mortgage company never has obtained personal jurisdiction over Barbara Buchanan; consequently, she has yet to file an answer in the case.
On August 24, 2004, plaintiff filed a petition in bankruptcy under Chapter 13.
On March 21 and 22, 2006, the Family Court conducted a hearing regarding the division of marital property. At some point, the date of which is unclear, the Family Court ordered the sale of the properties to determine the value thereof.
On April 18, 2006, the Bankruptcy Court:
held a hearing pertinent to matters of property, and issued an order allowing Mr. Buchanan to refinance said properties, where in the process of the refinance Ms. Buchanan would be given consideration of her equitable share, and further directed Ms. Buchanan to sign the USDA forms required of Mr. Buchanan's farming operation, as well as advised Ms. Buchanan that she is responsible to ensure that her mortgages are paid, where failing to do so subjects the properties to loss due to foreclosure.
Complaint at paragraph 19.
On or about May 7, 2006, another lender contacted plaintiff and informed him that due to late payments, it may be forced to foreclose on the parties' farm.
In paragraph 21 of the complaint, defendant alleges:
As of May 16, 2006, Barbara H. Buchanan, well represented by Counsel in all Court proceedings has failed to file a proof of claim with the Bankruptcy Court, (Deadline to file claim 1/3/05), has not answered any foreclosure action, nor made any attempt to service her contractual mortgage obligations following divorce, and an order of property separation, and has further impaired the obligation of mortgage contracts by interfering with income paid to Mr. Buchanan to support mortgages through governmental subsidy, by refusing to sign USDA forms.
Under the caption "Impairing the Obligation of Contract", he asserts the following. Defendant has failed to honor her obligations on the contracts secured by the mortgages, thereby resulting in litigation and causing "equitable loss to Plaintiff in the way of imposed fines, fees, legal costs." By not timely signing the USDA forms, she has caused a loss of income used to pay the mortgages.
Under the caption "Tort", plaintiff asserts defendant has defrauded him in the following ways. "She never intended to pay or otherwise honor her contractual mortgage guarantees, even in the event where her husband became ill." She withdrew monies that could have been used to support the mortgages and used those monies to pay for attorneys and purchase other things. She fraudulently removed assets from the marital estate and hid it in other properties owned by her mother. She has refused to comply with the Federal Bankruptcy Judge's instructions to pay monies due on the real property and to sign the USDA form. Finally:
She has filed a fraudulent financial statement with the Family Court, failed to provide financial information requested by Subpoena, failed to account for money paid to others, failed to account for the source of funds for which she paid attorneys, and has sought an emergency list and sale of property in Family Court after causing default of mortgages. He maintains he has suffered damages as a result of her fraud, misrepresentations, contractual defaults, failures to appear in Court, and bad faith. He asks for general and punitive damages.
Count Three is captioned "Interference with land use". He alleges that defendant should have filed a proof of claim with the Bankruptcy Court so that the land could be valued and he could start to refinance. He further alleges she has interfered with plaintiff's right to farm and subjected the real property to loss due to interruption of income and she maliciously has interfered with his right to use the property.
He asks for money damages (general and punitive) and a partition of the property which would result, not in a partitioning of the property, but in placing the property solely in plaintiff's name. He also asks for costs and attorneys' fees incurred in the foreclosure and bankruptcy matters.
5) This Court does not have jurisdiction over this complaint. Plaintiff's forum for filing these complaints and seeking remedies is within the Family Court.
The exception to this conclusion would be if an order of the Bankruptcy Court does exist instructing defendant to pay the mortgage or take any other steps with regard to the marital property. In such a case, plaintiff may file a Rule to Show Cause with the Bankruptcy Court requiring defendant to explain why she should not be held in contempt of Court for failing to comply with that Court's orders.
Plaintiff's complaint clarifies that Family Court is exercising jurisdiction over the marital property. The allegations which plaintiff makes concern him, his ex-wife, her alleged wrongful actions in connection with those proceedings, and mortgages and procedures related to their marital property. The Family Court has exclusive jurisdiction over the complaints plaintiff makes here. 10 Del. C. § 921(14); 13 Del. C. § 507. Plaintiff must seek his remedies within that Court. For example, if there is no order instructing defendant to pay the mortgage and/or to sign appropriate documentation so that plaintiff can farm the land, then plaintiff must go to Family Court to request that relief. If there is a Family Court order instructing defendant to pay the mortgage, then plaintiff can file a Rule to Show Cause with Family Court regarding her failure to pay that mortgage. See Imperial v. Imperial, 1999 Del. Fam. Ct. LEXIS 3 (Del.Fam. Ct.) (Petitioner's petition seeking a rule to show cause because his wife refused to pay the mortgage was dismissed because there was no order in effect requiring she do so). Plaintiff also has the option of seeking an order from the Family Court requiring defendant to reimburse him for expenses and fees he has incurred as a result of mortgage foreclosure proceedings if defendant is violating a Family Court order. Scholl v. Scholl, 621 A.2d 808, 813 (Del.Fam.Ct. 1992). Plaintiff can request that Family Court consider the failure to pay the mortgage in its decision regarding the distribution of the assets. Bryant v. Bryant, 1999 Del. Fam. Ct. LEXIS 22 (Del.Fam.Ct.).
Plaintiff's request for a "partition" of the property transferring title into his name alone is not an option available to him. First, a "partition" is a dividing of the property between the various owners; it is not a taking of the property from one owner and giving it to the other owner. Furthermore, as noted above, Family Court has jurisdiction over the division of the marital property. Even if the Family Court had not yet exercised jurisdiction and plaintiff actually was seeking a partition of the property, he would have to file such an action with the Family Court. 10 Del. C. § 921(14); Nero v. Littleton, 1998 Del. Ch. LEXIS 57 (Del.Ch.).
Finally, I address plaintiff's contention regarding defendant's failure to file an answer in the case of Mortgage Electronic Registration Systems, Inc. v. Buchanan, C.A. No. 04L-06-001. Since defendant has not been served in that case, she has no duty to file an answer.
6) For the foregoing reasons, I dismiss the complaint in this matter for lack of jurisdiction.
IT IS SO ORDERED.