Submitted: October 21, 2013
Upon Consideration of Defendants' Motion for Partial Summary Judgment DENIED
David J. Weidman, Esquire, Sergovic, Carmean & Weidman, P.A., Georgetown, Delaware for Plaintiff.
Steven Schwartz, Esquire, Schwartz & Schwartz, Dover, Delaware for Defendants.
Defendants Kirk D. Albertson (Defendant Kirk Albertson) and Edward M. Albertson (Defendant Edward Albertson) (collectively "Defendants") move for Partial Summary Judgment on the ground that Talbot Bank of Maryland ("Plaintiff") has no valid mortgage claim against the property interests of the surety, Defendant Edward Albertson, because that mortgage interest was discharged by Talbot Bank's release of a co-obligor, Roger Brown. The issue of Defendant Edward Albertson's liability under the mortgages he signed, cannot be resolved without a presentation of evidence surrounding the circumstances and language in Defendant Edward Albertson's mortgages as well as in Roger Brown's release. Hence, Defendants' Motion for Partial Summary Judgment is DENIED.
On June 2, 2010, Plaintiff filed a foreclosure action on its second and third mortgages. The first mortgage ($200, 000), which is to MERS for Quicken Loans is also in separate foreclosure proceedings. Defendants answered Plaintiff's Complaint, raising affirmative defenses. By decision on June 5, 2013, this Court granted Plaintiff Summary Judgment on two of the three affirmative defenses raised by the Defendants in this foreclosure action. The Court denied Plaintiff's request for Summary Judgment on Defendant Edward Albertson's defense that he should be released from the mortgages which he signed, when Plaintiff released the co-obligor, Roger Brown.
Following the Court's June 5, 2013 decision, the Defendants performed additional discovery. Defendant Edward Albertson now requests Partial Summary Judgment in his favor on the remaining affirmative defense. Defendants filed an opening brief in support of their request for Partial Summary Judgment on August 27, 2013. The Plaintiff filed an answering brief in opposition to Defendants' motion.
STATEMENT OF FACTS
The instant action concerns a home farm ("Subject Property"), which was acquired by deed on October 31, 1991, by Defendant Edward Albertson and his wife, Dolores L. Albertson ("Mrs. Albertson"). Then, by deed dated November 20, 1998, Defendant Edward Albertson transferred his interest in the property to Mrs. Albertson, who died on December 6, 2005. Defendant Edward Albertson's and his son, Kirk Albertson's interests in the Subject Property derive from Mrs. Albertson's last will and testament. Even though Defendant Edward Albertson did not sign a note or guaranty obligating himself personally to repay the loan, on June 13, 2008, Defendants executed the $350, 000 mortgage. That mortgage secured the $350, 000 note to Plaintiff as well as the guaranty signed by Defendant Kirk Albertson. To secure that $350, 000 note and his guaranty, Roger Brown had also given a Mortgage on his home property. To secure the same $350, 000 note and his guaranty, William Haddaway and Dawn Hinkle had given a mortgage on real property owned by them.
There was no money disbursed to Defendant Edward Albertson from the June 13, 2008 $350, 000 mortgage. Defendant Edward Albertson signed the mortgage as a surety. Allegedly, Defendant Edward Albertson would have been unwilling to sign the mortgage, which he gave but for the fact that William Haddaway and Roger Brown were co-obligors on the note. William Haddaway and Roger Brown had given mortgages on their own properties to secure that note. In giving the mortgage, Defendant Edward Albertson relied upon the obligations of William Haddaway and Roger Brown on the note. Defendant Edward Albertson also relied upon the collateral security on which William Haddaway and Roger Brown gave their mortgages.
In December, 2008, Plaintiff released Roger Brown from his obligations under that $350, 000 note and his guaranty, then released his home property from the mortgage, which secured that note. The release document(s) contained no express reservation of Plaintiff's rights against either of Defendants, or the property of Defendants. Plaintiff at no time sought or received consent from Defendant Edward Albertson, to the release of the security furnished by Roger Brown to secure that $350, 000 note. On February 13, 2009, Defendant Edward Albertson executed a mortgage to secure a note for $75, 000, pledging his property as security. After Plaintiff filed the foreclosure complaint, $355, ...