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BAC Home Loans Servicing, LP v. Albertson

Superior Court of Delaware, Kent

February 10, 2014

BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, Plaintiff,
v.
KIRK D. ALBERTSON and EDWARD M. ALBERTSON, Defendants.

Submitted: January 7, 2014

Upon Consideration of Plaintiff's Motion for Summary Judgment GRANTED

Upon Consideration of Defendants' Motion for Summary Judgment DENIED

Lisa R. Hatfield, Esquire, Morris, Hardwick & Schneider, Newark, Delaware for Plaintiff.

Steven Schwartz, Esquire, Schwartz & Schwartz Attorneys at Law, Dover, Delaware for Defendants.

ORDER

ROBERT B. YOUNG, J.

SUMMARY

BAC Home Loans Servicing, LP ("Plaintiff"), moves to enter an order granting Summary Judgment in favor of Plaintiff pursuant to Superior Court of Delaware Rule 56. Plaintiff seeks judgment against the subject property under a mortgage, and judicial sale for non-payment of that mortgage by Kirk D. Albertson and Edward M. Albertson ("Defendants"). Plaintiff argues that Defendants' responses in its Answer to Plaintiff's Complaint fail to develop a valid defense to non-payment of the mortgage, which leaves no issue of material fact to be decided.

Defendants' Motion for Summary Judgment focuses mainly on Defenses 1-5, 7 and 8, which were introduced in Defendants' Answer to Plaintiff's Complaint. Defense 6 has already been litigated in favor of the Plaintiff.[1] Defendants set forth the following defenses: 1) Plaintiff failed to meet conditions precedent to the lender's right to accelerate and foreclose in the "Notice of Intent to Accelerate" ("the Demand Letter") sent to Defendants; 2) Plaintiff fails to allege a valid assignment pursuant to 25 Del. C. Section 2109; and 3) Plaintiff failed to process a loan modification application in August, 2009.

However, Defendants do not have standing to challenge the validity of the assignment, because Defendants are not parties or third party beneficiaries to the contract between Plaintiff and Mortgage Electronic Registration Systems ("MERS"), the assignor. Therefore, Defendants' Motion for Summary Judgment is DENIED. The assignment was properly executed, granting Plaintiff the right to foreclose in 2009. Furthermore, the assignment meets the basic requirements for validity set forth under 25 Del. C. Section 2109. Thus, Plaintiff has a valid assignment to the mortgage, making it a proper party to bring this foreclosure action. Plaintiff's Motion for Summary Judgment is GRANTED.

FACTS AND PROCEDURAL POSTURE

On February 28, 2008, Kirk D. Albertson purchased a $200, 000 Note from Quicken Loans Inc. On the same date, Kirk D. Albertson and his father, Edward M. Albertson received a $200, 000 mortgage ("the Mortgage") from MERS as nominee for Quicken Loans, Inc. Allegedly, Edward M. Albertson did not receive any part of the loan proceeds, did not sign the Note, and was not liable on it. MERS assigned the Mortgage to Plaintiff on July 22, 2009. Mary Kist, purported Vice President of MERS, including two witnesses, signed the assignment.

When Kirk D. Albertson fell behind in his monthly mortgage loan payments, Edward M. Albertson made a payment on August 6, 2009 that brought the balance of the loan current. Allegedly, Edward M. Albertson made this payment on the basis that Plaintiff would process Kirk D. Albertson's application for modification of the loan to reduce the monthly payment. Subsequently, Defendants defaulted on the mortgage.

In 2010, Plaintiff brought the instant in rem foreclosure proceeding, seeking judgment against the Property and judicial sale for non-payment of the mortgage pursuant to the mortgage agreement on February 28, 2008. Paragraph 22 of the Mortgage requires a 30 day notice of default and notice to Defendants of the right to assert defenses before initiation of the foreclosure proceeding. On September 20, 2010, Plaintiff mailed the Demand Letter to ...


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