Submitted: March 8, 2013
David J. Weidman, Esq., Sergovic, Carmean & Weidman, P.A., Georgetown, Delaware for Plaintiff.
Robert K. Beste, III, Esq., Smith, Katzenstein & Jenkins, LLP, Wilmington, Delaware for Defendants.
Robert B. Young J.
In this case, involving alleged defaults on notes associated with realty obligation, Talbot Bank of Easton, Maryland ("Plaintiff"), has filed for Summary Judgment. Because, as has been described in a prior decision (May 15, 2012), Kirk D. Albertson and Edward M. Albertson ("Defendants"), were in a posture to alienate the property through a mortgage, Defendants' affirmative defense claiming a lack of such ability is not well taken. Accordingly, Plaintiff's Motion for Summary Judgment in its favor as to that affirmative defense is GRANTED.
Because Defendants raise factual issues relative to other affirmative defenses, Plaintiff's motion thereon is DENIED.
Thus, Plaintiff's motion is GRANTED in part and DENIED in part.
On June 13, 2008, Defendant Kirk Albertson executed a Note with two co-obligors William G. Haddaway ("Haddaway") and Roger Brown ("Brown") for a commercial loan of $350, 000.00. Haddaway, a co-obligor, and his wife Dawn Hinkle ("Hinkle"), gave a mortgage on real property they owned to secure the Note and Haddaway's guaranty. Brown, one of the co-obligors also gave a mortgage on his home property to secure the note and his guaranty. On February 13, 2009, an entity named Rokabil Motors, LLC executed a Note for $75, 000.00. Defendants executed a mortgage in connection with that Note, pledging the same two parcels. Kirk Albertson executed unconditional guarantees on both June 13, 2008 and February 13, 2009, to secure Plaintiff's interest further in the two Notes. Simultaneously, Defendants delivered to Plaintiff, a mortgage in the amount of $350, 000.00. The mortgage was given to secure the repayment of that Note. The Defendants claim that they jointly relied on the mortgages signed by Haddaway and Brown in giving their mortgages on the subject property.
Kirk Albertson defaulted on both Notes, as he failed to make payments as they became due. Plaintiff filed this foreclosure action on the mortgages given by Defendant's described above. There is an additional mortgage, in the amount of $200, 000 in a separate foreclosure proceeding. The filings provided by Plaintiff do not state when the default occurred. At the time of filing $355, 672.32 was due under the first loan, and $78, 429.81 was due under the second, plus appropriate interest accruing. Plaintiff also claims attorney's fees up to 20% of the unpaid balance.
In December 2008, Plaintiff released Brown from his obligations under the $350, 000.00 Note and Guaranty, releasing his home property from the mortgage which secured that Note. The record is silent regarding whether or not Plaintiff received consideration for the release of Brown and his security. Plaintiff did not seek or receive consent from Defendant Edward Albertson to the release of the security Brown had provided. Additionally, the release documents fail to contain any express reservation of Plaintiff's rights against either of the defendants, or the property in question. Plaintiff alleges that Kirk Albertson consented to the release of Brown's financial obligations by signing a redemption agreement on December 1, 2008.
In April 2010, Plaintiff released the security furnished by Haddaway and Hinkle to secure the $350, 000.00 Note and Guaranty. According to Plaintiff, it only released its lien on the Haddaway property because that real estate did not have sufficient equity to secure Plaintiff's interest in the loan. It did not release Haddaway from his personal obligations under the Note. He was personally liable on that debt until it was discharged, by the United States Bankruptcy Court, District of Maryland, Baltimore Division, on April 22, 2011. There was no consideration paid to Plaintiff. Defendants allege that this release was granted as a favor to Hinkle, who is a long-time employee of Plaintiff. Plaintiff did not seek or receive consent from Edward Albertson for the release of the security furnished by Haddaway and Hinkle, nor did the release documents contain any express reservation of Plaintiff's rights against Defendants, or the property in question. Plaintiff also released the property furnished by Haddaway and Hinkle to secure the $75, 000.00 Note in April 2010. No consideration was given to Plaintiff for that release.
Before the Court is Plaintiff's Motion for Summary Judgment regarding the validity/invalidity of the Defendants' three affirmative defenses to the foreclosure action.
STANDARD OF REVIEW
Summary judgment is appropriate where the record exhibits no genuine issue of material fact so that the movant is entitled to judgment as a matter of law."Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances." The movant bears the initial burden of establishing that no genuine issue of material fact exists. Upon making that showing, the burden shifts to the non-movant to show evidence to the contrary. When considering a motion for summary judgment, the Court considers the facts in the light most favorable to the non-movant.
In their Answer to the Complaint, Defendants asserted the following affirmative defenses: 1) Edward Albertson was an accommodation party under Title 6 of the Delaware Code, and thus, should be released from the mortgages; 2) the Albertsons should be discharged from the mortgages because Plaintiff released other co-obligors; and 3) that the mortgages did not cover Kirk Albertson's possessory interest in the property. Plaintiff's Motion for Summary Judgment concerns the ...