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U.S. Bank National Association v. Gunn

United States District Court, D. Delaware

March 4, 2014

U.S. BANK NATIONAL ASSOCIATION as Trustee for the Holders of the EQCC Home Equity Loan Asset Backed Certificates, Series 1998-3 and SELECT PORTFOLIO SERVICING, INC., Plaintiffs,
v.
LA MAR GUNN, Defendant

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Francis G. X. Pileggi, Dorothy Davis, and Jill Kornhauser Agro, Esquires; Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware; Counsel for Plaintiffs.

La Mar Gunn, Camden Wyoming, Delaware; Pro se Defendant.

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MEMORANDUM OPINION

Richard G. Andrews, U.S. District Judge.

Pending before the Court are Plaintiffs' motion for summary judgment (D.I. 97), as well as Defendant's cross-motion for summary judgment (D.I. 150), motion to dismiss (D.I. 159), motions to strike (D.I. 164, 171), motion to disqualify Plaintiffs' counsel (D.I. 165), and motion for an independent inquiry and an order to show cause. (D.I. 166). The Court has jurisdiction pursuant to 28 U.S.C. § 1332. For the reasons given below, the Court will deny Plaintiffs' motion for summary judgment, will strike Defendant's cross motion for summary judgment, hold the motion to dismiss in abeyance, and will deny Defendant's motions to strike, motion to disqualify Plaintiffs' counsel, and motion for an order to show cause.

I. PROCEDURAL AND FACTUAL BACKGROUND

Defendant La Mar Gunn unsuccessfully asserted ownership of property located at 201 Cornwell Drive in Bear, Delaware in numerous court cases.[1] Gunn purchased

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the property from its owners, Leisa and Robert Johnson, and it was the subject of a foreclosure action in U.S. Bank v. Johnson, C.A. No. 02L-07-075, (Del. Super. Ct.). The Superior Court of the State of Delaware found that Gunn " knew he was buying a property with a first mortgage[, and that he] also had actual notice that the note and mortgage were in serious default. U.S. Bank Nat'l Ass'n v. Johnson, 2010 WL 705723, at *3 (Del. S.Ct. Feb. 25, 2010), aff'd, Gunn v. U.S. Bank Nat'l Ass'n, 998 A.2d 850 (Del. 2010). " Knowing the loan was in default and in foreclosure, Gunn purchased [an April 1998 mortgage on the property in issue] in November 2003. On December 16, 2003, Gunn purchased [the] property by quitclaim deed, which he recorded on March 4, 2004." Id. at *1. " On November 9, 2004, Gunn claimed ownership of the property and filed a motion to stay the sheriff's sale [of the property]." Id. The property was sold at the sheriff's sale on December 9, 2008 to Plaintiff U.S. Bank National Association as Trustee for the Holders of the EQCC Home Equity Loan Asset Backed Certificates, Series 1998-3. (D.I. 1, ex. E.)

On November 12, 2010, the Superior Court of the State of Delaware granted U.S. Bank a writ of possession of the property. ( Id. at ex. G.) According to Plaintiffs, the Sheriff of New Castle County executed the writ of possession on February 1, 2011, and removed Gunn from the property. When U.S. Bank took possession of the property, it discovered damage to the property that included the removal of the front door, furnace, garbage disposal, dishwasher, refrigerator, washer and dryer, two exterior doors, eight interior doors, two sets of double doors, the interior and exterior HVAC units, seven interior ceiling light fixtures, two exterior light fixtures, molding around the doors, and a stove hood in the kitchen and five broken sliding glass door panels, four broken windows, two broken one-car garage doors, broken bathroom fixtures, numerous large holes in the interior walls, damaged rugs, a disconnected kitchen sink, as well as other miscellaneous damage.

Plaintiffs filed their Complaint on November 21, 2011. Gunn answered and raised counterclaims against Plaintiffs. All counterclaims having been dismissed. (D.I. 1, 5, 23, 39, 42.) On May 11, 2012, Plaintiffs sold the property at issue. (D.I. 99, ex. 1). The case proceeds on the verified Complaint (D.I. 1), and it raises the following claims: Count I, trespass to real estate; Count II, conversion; Count III, unjust enrichment; Count IV, tortious interference with prospective business opportunities;

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Count V, slander of title; and Count VI, abuse of process. Plaintiffs seek compensation for lost rent, diminution in property value, and a permanent injunction to prevent future interference.[2]

On February 8, 2012, the Court entered a scheduling order (D.I. 24) that set a February 22, 2012 deadline for the joinder of other parties and amendment of pleadings ( id. at ¶ 2), a discovery deadline of April 8, 2012 ( id. at ¶ 3.a), and a dispositive motion deadline of July 8, 2012, ( Id. at ¶ 7). Plaintiffs timely filed their motion for summary judgment. (D.I. 97). When the Court belatedly discovered that Gunn had not responded to the motion, it dismissed the motion without prejudice, deemed it refiled, and set a briefing schedule for responses to the motion. (See D.I. 149.)

Gunn filed his opposition to Plaintiffs' motion for summary judgment with a combined cross-motion for summary judgment (D.I. 150) and, on May 2, 2013, Gunn filed a motion to dismiss. (D.I. 159). Gunn did not seek leave to file the dispositive motions, and they were filed well past the dispositive motion deadline of July 8, 2012. Therefore, the cross-motion for summary judgment (D.I. 150) will be stricken and will not be considered.[3] The motion to dismiss (D.I. 159), while also untimely, concerns in part jurisdictional matters, and the Court believes it would be better to resolve the motion on the merits, and therefore that motion will remain pending. The Court will consider Gunn's opposition to Plaintiffs' motion for summary judgment that is contained in the combined filing. (D.I. 150).

II. STANDARD OF REVIEW

" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A " material fact" is one that " could affect the outcome" of the proceeding. See Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court will " draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

If the moving party is able to demonstrate an absence of disputed material facts, the nonmoving party then " must come forward with 'specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita, 475 U.S. at 587. The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment. Anderson, 477 U.S. at 249. Rather, the nonmoving party must present

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enough evidence to enable a jury to reasonably find for it on that issue. Id. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. ANSWER TO COMPLAINT/RESPONSES TO REQUESTS FOR ADMISSIONS

Plaintiffs move for summary judgment on the grounds that there are no factual disputes at issue. This is based upon their position that Gunn did not deny any of the factual allegations in the Complaint and that he failed to timely answer or oppose Plaintiffs' requests for admissions. Gunn opposes the motion (D.I. 150) on the grounds that Plaintiffs lack standing and they failed to join several indispensable parties.

Gunn proceeds pro se. The Court finds that Gunn's global denial in his answer (D.I. 5, ΒΆ 1) to the Complaint denies all allegations raised against him. In addition, the Court exercises its discretion and considers Gunn's responses to the requests for admissions. Plaintiffs served requests for admissions (D.I. 31) upon Gunn on February 22, 2012, and Gunn served his responses (D.I. 58) to the requests for admissions on April 25, 2012. Assuming Gunn received the request for admissions in three days, his responses were untimely by approximately one month. ...


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