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US Bank National Association v. Gilbert

Superior Court of Delaware

January 15, 2014

US BANK NATIONAL ASSOCIATION, as Trustee for Citigroup Mortgage Loan Trust, Inc., Mortgage Pass-Through Certificates, Series 2006-WF2 assignee of Wells Fargo Bank, N.A., Plaintiff,
v.
REGINALD A. GILBERT, Defendant.

Submitted: December 6, 2013

Upon Consideration of Plaintiff's Motion for Summary Judgment

Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff.

Dean A. Campbell, Esquire, The Law Office of Dean A. Campbell, LLC, Georgetown, Delaware for Defendant.

ORDER

Young, J.

SUMMARY

US Bank National Association ("Plaintiff") moves for an order granting summary judgment against Reginald A. Gilbert ("Defendant") in an action to recover the principal sum of the amount due and owing under Defendant's mortgage loan, after Plaintiff accelerated the balance. There are genuine issues of material fact in the instant action that preclude an order granting summary judgment. These issues are whether: 1) Plaintiff is the holder of the promissory note associated with Defendant's mortgage loan; 2) whether Plaintiff's supporting affidavit is valid; and 3) whether the assignment transferring interest in Defendant's mortgage loan to Plaintiff was proper. Accordingly, Plaintiff's Motion for Summary Judgment is DENIED.

FACTS AND PROCEDURAL POSTURE

On January 13, 2006, Defendant executed a mortgage loan (the "Mortgage") with Wells Fargo Bank, N.A. ("Wells Fargo"). Wells Fargo allegedly assigned its entire interest in the Mortgage (the "Assignment") to U.S. Bank National Association, as Trustee for Citigroup Mortgage Loan Trust, Inc. Defendant allegedly failed to pay the monthly installments of the Mortgage when due. Hence, Plaintiff demanded payment from Defendant on September 4, 2011 (the "Demand Letter"). Defendant was informed of Plaintiff's intention to accelerate the balance in a letter on November 21, 2011 (the "Fair Debt Letter"). Defendant, therefore, is alleged to owe Plaintiff the principal sum of the amount remaining on the Mortgage with interest from December 1, 2010, together with reasonable counsel fees, late charges and costs.

On December 21, 2011, Plaintiff filed its complaint (the "Complaint") against the Defendant seeking foreclosure of Plaintiff's interest in the property located at 278 Evelyndale Drive, Dover, Delaware 19904-1825 (the "Property"), under the Mortgage referenced in the Complaint. Prior to the filing of the Complaint, Wells Fargo allegedly assigned the Mortgage to Plaintiff. The Assignment of the Mortgage was dated September 2, 2011, and recorded on September 8, 2011. As of the date of the filing of Plaintiff's Motion for Summary Judgment, Plaintiff asserts, the arrearages have not been paid, and the resulting default has not been otherwise cured.

Defendant was personally served with a copy of Plaintiff's Complaint on January 12, 2012. Defendant entered his appearance on April 18, 2012. On April 30, 2012, Defendant filed an Answer to Plaintiff's Complaint. In Defendant's Answer to Plaintiff's Complaint, Defendant admitted the execution and delivery of the Mortgage as well as the recordation of the Mortgage. Defendant denied that a copy of the Assignment was attached to the Complaint within Exhibit A. Defendant admitted that a copy of the Fair Debt Collections Practices Act disclosure notice was attached to the Complaint as Exhibit B for identification purposes only. Defendant denied that Plaintiff has followed applicable standards of conduct pursuant to the Fair Debt Collections Practices Act. In addition, Defendant denied that Plaintiff was entitled to accelerate the mortgage.

Further, Defendant raised the following two affirmative defenses in his Answer: 1) Plaintiff lacks standing, because Plaintiff has not proven a sufficient chain of assignments to have the authority to enforce a foreclosure on the Defendant; and 2) Plaintiff has denied the Defendant the required opportunity to avoid foreclosure through early intervention upon delinquency pursuant to the FHA servicing requirements and standards, promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C. Section 1710(a). On November 14, 2013, Plaintiff filed the instant Motion for Summary Judgment. On December 13, 2013, Defendant filed a Response to Plaintiff's Motion for Summary Judgment.

STANDARD OF REVIEW

Pursuant to Superior Court Civil Rule 56, summary judgment is appropriate when there is no genuine issue of material fact so that the moving party is entitled to judgment as a matter of law. In ruling on a Motion for Summary Judgment, the Court must consider the facts in the light most favorable to the non-moving party.[1]The moving party bears the burden of showing that no genuine issue of material fact exists.[2] If, in a properly supported motion for summary judgment, the moving party shows that there is no genuine issue of material fact, then the burden shifts to the non-moving party to prove that there is a material issue of fact in dispute.[3] In order to carry its burden, the non-movant must produce specific facts, which would sustain a verdict in its favor.[4] The non-movant cannot create a genuine issue for trial through bare assertions or conclusory ...


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