Opinion
C.A. No. K16L-01-061 RBY
03-15-2017
FREEDOM MORTGAGE CORPORATION, Plaintiff, v. AMANDA G. KING, LISA DENISE KING, Heir to the Estate of James E. King, Jr., JAMES E. KING, III, Heir to the Estate of James E. King, Jr., and KENNETH MAURICE KING, Heir to the Estate of James E. King, Jr., Defendants.
Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff. Amanda King, Pro se, Lisa Denise King, Pro se, James E. King, III, Pro se, Kenneth Maurice King, Pro se, Defendants.
Upon Consideration of Plaintiff's Motion for Summary Judgment
GRANTED
ORDER
Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff. Amanda King, Pro se, Lisa Denise King, Pro se, James E. King, III, Pro se, Kenneth Maurice King, Pro se, Defendants. Young, J.
SUMMARY
Freedom Mortgage Corporation (Plaintiff) filed this Motion for Summary Judgment against Amanda G. King; Lisa Denise King; James E. King, III; and Kenneth Maurice King (Defendants) in a scire facias sur mortgage action. Defendants, with the exception of Amanda King, did not respond to this Motion for Summary Judgment. Defendant Amanda King did not answer Plaintiff's Complaint by affidavit, and she did not raise a defense that is allowed in a scire facias sur mortgage action. Therefore, Plaintiff's motion is GRANTED.
FACTS AND PROCEDURE
Defendant Amanda King and James E. King, Jr. executed and delivered a mortgage to Plaintiff on January 3, 2014, with respect to a property in Smyrna, Delaware. James E. King, Jr. died on May 28, 2014. Plaintiff asserts that, after James E. King, Jr.'s death, his share of the property transferred to his children: Defendants Lisa King; James King, III; and Kenneth King. Alternatively, Defendant Amanda King asserts that the property never transferred to James King, Jr.'s children. His children never responded to the Complaint or this Motion for Summary Judgment, though service was perfected on each of them. Defendants do not occupy the Smyrna property.
Although Plaintiff does not claim service has been perfected with respect to Defendant Kenneth King, Delaware Superior Court Civil Rule 4(f)(4) appears to deem service proper in this instance. It reads, "in actions begun by scire facias, two returns without service of two consecutive writs, being the original writ and an alias writ, followed by a certification by the sheriff that he has posted a copy of the alias writ on the subject property and has mailed a copy of the alias writ by both certified mail, return receipt requested, and first class mail to the last known address (as stated in the praecipe) of the defendants, shall constitute legal and sufficient service." This is a suit initiated by scire facias. There were two returns without service of two consecutive writs sent to Defendant Kenneth King at a Baltimore, Maryland address. The first dated February 19, 2016, and the second dated May 3, 2016. Further, the sheriff certified that he posted a copy of the writ at the subject property on August 4, 2016, and mailed a copy of the writ by both certified mail, return receipt requested and first class mail to Defendant Kenneth King's last known address, at the subject property, on August 8, 2016. A pluries praecipe dated July 20, 2016, listed Defendant Kenneth King's last known address as being at the subject property.
The parties agree that Defendants failed to pay the monthly installments, as required under the mortgage, when the installments were due. Plaintiff demanded that the Defendants make payment in a letter dated July 18, 2014. This demand letter included:
1) Notice of Defendants' default;Plaintiff asserts that acceleration of the sums secured by the mortgage was appropriate in this instance.
2) An explanation of the payments Defendants had to make to cure the default;
3) Notice of the date on which the default had to be cured;
4) A warning that failure to cure the default could result in acceleration of the sums secured by the mortgage;
5) Notice of the Defendants' right to reinstate after acceleration; and
6) Notice of the Defendants' right to assert defenses to default such as a lack of default.
Under the instant mortgage, acceleration is appropriate when the lender abides by Section 22 of the mortgage. This section reads
Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument . . . . 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 of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.
Defendant Amanda King maintains that she has been in communication with Plaintiff regarding a mortgage modification. She claims her request for a mortgage modification remains outstanding.
Plaintiff filed a Complaint on January 29, 2016. In the Complaint, Plaintiff demanded that the Defendants answer by affidavit. Defendant Amanda King's answer was not under oath. On January 11, 2017, Plaintiff filed the instant Motion for Summary Judgment.
STANDARD OF REVIEW
Summary judgment is appropriate where the record exhibits no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. This Court shall consider the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" in deciding the motion. The moving party bears the initial burden of demonstrating the nonexistence of material issues of fact. The burden then shifts to the nonmoving party to show that there are material issues of fact in dispute. The Court views the record in the light most favorable to the nonmoving party. When material facts are in dispute, or "it seems desirable to inquire more thoroughly into the facts, to clarify the application of the law to the circumstances," summary judgment will not be appropriate. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. May 22, 1997).
Del. Super. Ct. Civ. R. 56(c).
Fauconier v. USAA Cas. Ins. Co., 2010 WL 847289, at *2 (Del. Super. Mar. 1, 2010).
Id.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. Aug. 6, 1979).
Sztybel v. Walgreen, 2011 WL 2623930, at *2 (Del. Super. June 29, 2011).
Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
DISCUSSION
A. Defendants, Except Amanda King, Did Not Respond to Plaintiff's Motion for Summary Judgment
As noted above, the moving party bears the initial burden of demonstrating the nonexistence of material issues of fact. Plaintiff's summary judgment motion provides evidence supporting its allegations that Defendants have failed to pay the monthly installments of the mortgage when due, that Plaintiff demanded payment, and that Plaintiff notified Defendants of its intention to accelerate the mortgage payments. Plaintiff met its burden.
Fauconier, 2010 WL 847289, at *2.
The burden then shifts to the nonmoving party to show that there are material issues of fact in dispute. By failing to answer, Defendants, with the exception of Amanda King, failed to meet their burden. Thus, summary judgment, as to them, is appropriate.
Id.
B. Defendant Amanda King's Answer Was Not in Affidavit Form
Further, Plaintiff argues that summary judgment is appropriate, with respect to Defendant Amanda King, because her answer was not in affidavit form. As noted above, Plaintiff's Complaint demanded Defendants' entire answer be in affidavit form. Further, Plaintiff's action is a scire facias sur mortgage action. Thus, Defendants were required to respond to the Complaint with statements under oath that set forth "the specific nature and character of any defense and the factual basis therefore," if they responded at all. Defendant Amanda King responded with a statement that was not under oath. Hence, her response was not in compliance with 10 Del. C. § 3901(a).
The Cannery, LLC v. Covak, Inc., 2009 WL 582763, at *1 (Del. Super. Feb. 27, 2009).
When a party does not answer a scire facias sur mortgage Complaint pursuant to 10 Del. C. § 3901(a) this Court deems the portions of the Complaint to which Plaintiff demanded an affidavit answer admitted. Because Defendant Amanda King did not answer the Complaint with an affidavit, this Court deems the Complaint's allegations, as to her, admitted. C. Defendant Amanda King Failed to Assert Any of the Defenses Allowed in a Scire Facias Sur Mortgage Action
10 Del. C. § 3901(d); PHH Mortgage Servs. Corp. v. Rucker, 2007 WL 1229434, at *1 (Del. Super. Apr. 19, 2007) (granting motion for summary judgment because defendant did not answer a Complaint, with an affidavit, in a mortgage foreclosure action in which the plaintiff demanded an affidavit answer).
These allegations are the same as those made in the summary judgment motion. Specifically they are that Defendants have failed to pay the monthly installments of the mortgage when due, that Plaintiff demanded payment, and that Plaintiff notified Defendants of its intention to accelerate the mortgage payments
Even if Defendant properly answered Plaintiff's Complaint, summary judgment, as to her, would be appropriate. Defendant Amanda King argues that Plaintiff did not evaluate her eligibility for assistance under the United States Department of Treasury's Making Homes Affordable Program, as it allegedly was obligated to do. The Making Homes Affordable Program requires participating loan service providers to make reasonable efforts to contact mortgagors facing foreclosure. It also forbids them from proceeding with a foreclosure sale, unless they have evaluated the mortgagor for eligibility under the program. Loan service providers that are not government-sponsored enterprises participate in the program by signing an agreement with Fannie Mae.
U.S. Dept. Treasury, HAMP Supplemental Directive No. 09-01 (Apr. 6, 2009).
Id.
This Court only recognizes payment, satisfaction, pleas of avoidance, and the absence of a seal as defenses to scire facias sur mortgage actions. Pleas of avoidance admit the allegations of the Complaint while alleging in response facts that would destroy the effect of the allegations and defeat a plaintiff's right to relief. Specific pleas in avoidance include "act of God, assignment of a cause of action, conditional liability, discharge, duress, exception or proviso of statute, forfeiture, fraud, illegality of transaction, justification, nonperformance of condition precedent, ratification, unjust enrichment and waiver." In Brooks v. BAC Home Loans Servicing, LP, the Delaware Supreme Court held that denial of the opportunity to renegotiate loan terms, under the Making Homes Affordable Program, was not a defense of payment, satisfaction, avoidance, or absence of a seal. Therefore, the court in that case affirmed the trial court's grant of summary judgment.
Wilmington Trust Co. v. The Bethany Group Ltd. P'ship, 1993 WL 258686, at *2 (Del. Super. June 3, 1993).
Legg v. Nationstar Mortgage LLC, 2017 WL 568346, at *2 n.3 (Del. Feb. 6, 2017).
Gordy v. Preform Building Components, Inc., 310 A.2d 893, 895 (Del. Super. Aug. 13, 1973).
Id. at 895-96.
Brooks specifically argued that she was denied the opportunity to participate in the Homeowner Affordability and Stability Plan. Brooks v. BAC Home Loans Servicing, LP, 53 A.3d 301, 2012 WL 3637238, at *1 (Del. Aug. 23, 2012) (TABLE). This plan is the same thing as the Making Homes Affordable Program. U.S. Dept. Treasury, HAMP Supplemental Directive No. 09-01 (Apr. 6, 2009).
Brooks, 2012 WL 3637238, at *2.
Id. --------
Defendant Amanda King's defense is identical to the defense in Brooks. She essentially argues that she was denied the opportunity to renegotiate her mortgage obligation under the Making Homes Affordable Program. Thus, her defense is not viable, and summary judgment is appropriate.
CONCLUSION
Defendants, with the exception of Amanda King, failed to satisfy their summary judgment burden because they did not respond to the Plaintiff's motion. Defendant Amanda King failed to answer Plaintiff's Complaint in affidavit form and failed to assert a defense allowed in a scire facias sur mortgage action. Hence, Plaintiff's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
/s/ Robert B. Young
J. RBY/dsc
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