Deutsche Bank National Trust Co., et al.
Roslewicz, et al.
Submitted: June 3, 2014
Seth L. Thompson, Esquire Sergovic Carmean & Weidman, P.A.
Jason R. and Brenda G. Roslewicz
Dear Counsel and Litigants:
Plaintiff Deutsche Bank National Trust Company, ("Deutsche Bank"), as trustee for Wells Fargo Home Mortgage, Inc. ("Wells Fargo Home Mortgage"), filed a petition to reform a deed on the basis of mutual mistake. Deutsche Bank contends the name of Defendant Brenda G. Roslewicz mistakenly was included on the deed to 1994 McGinnis Pond Road, Magnolia, Delaware 19962 (the "Property") when Mrs. Roslewicz's husband, Jason R. Roslewicz, purchased the Property using funds obtained through a mortgage loan made solely to Mr. Roslewicz. Mr. and Mrs. Roslewicz maintain that the deed and the mortgage for the Property properly reflect the intent of the parties as written, but the Roslewiczes also concede that all parties intended for the loan to be secured by a mortgage on the Property. Because the undisputed facts show that the parties intended the Property to serve as collateral for the loan, and because that result only can be accomplished by correcting the apparent mistake in the deed, I recommend that the Court enter an order granting summary judgment in favor of Deutsche Bank.
In 2003, Mr. Roslewicz submitted a loan application to Wells Fargo Home Mortgage for the purpose of funding his anticipated purchase of the Property. Wells Fargo Home Mortgage approved Mr. Roslewicz for a loan of $143, 920.00. Mrs. Roslewicz did not apply for the loan and was not an approved borrower. On November 25, 2003, Mr. Roslewicz purchased the Property for $179, 900.00. The proceeds of the loan were used to fund the bulk of the purchase price for the Property, and Mr. Roslewicz signed a Mortgage on the Property in the amount of the loan.
Clifford B. Hearn, Jr., Esquire ("Attorney Hearn") represented Mr. Roslewicz at settlement. Although Mrs. Roslewicz was present at the settlement, only Mr. Roslewicz signed the settlement statement and the Mortgage. Additionally, only Mr. Roslewicz signed a Correction Agreement – Limited Power of Attorney appointing Clifford Hearn Law Firm as his agent. The deed that was recorded after settlement (the "Deed"), however, does not match the Mortgage, and instead lists both of the Roslewiczes as joint owners of the Property. The Deed is a sealed document. Wells Fargo Home Mortgage assigned the rights to the Mortgage to Deutsche Bank.
Deutsche Bank contends, and the Roslewiczes do not dispute, that all parties to the loan agreement intended the loan to be secured by the Mortgage on the Property. The Roslewiczes conceded this fact both in their filings in this Court and later at Mr. Roslewicz's deposition. Both defendants also acknowledge that – although they intended to purchase the Property as a family home – they did not intend for Mrs. Roslewicz's name to appear on the Deed.
In June 2004, the Roslewiczes took out a loan of $75, 000, which was secured by a second mortgage on the Property. The Roslewiczes both signed the second mortgage. Thereafter, Mr. Roslewicz defaulted on his mortgage payments. Following Mr. Roslewicz's default, Deutsche Bank tried to foreclose on the Property, at which point the discrepancy between the Mortgage and the Deed was discovered. Because the Deed does not match the Mortgage, Deutsche Bank cannot initiate a foreclosure action in Superior Court. On October 1, 2010, Deutsche Bank filed this action. The Roslewiczes were deposed in November 2011. Deutsche Bank later amended its complaint. Deutsche Bank then moved for summary judgment.
Deutsche Bank contends that the settlement documents as well as the Roslewiczes' actions and sworn statements show the parties' intentions at the time the loan was made and the Mortgage was executed. Specifically, Deutsche Bank argues that both parties believed the Property would be titled to Mr. Roslewicz, and would match the Mortgage, so that the Property would serve as collateral for the loan. Deutsche Bank maintains that the Deed matches neither the Mortgage nor the original intentions of the parties due to a scrivener's error made when the Deed was prepared. In response, the Roslewiczes maintain that the Deed as written reflects their true intentions at the time the loan was extended and the Mortgage was signed, because they always intended for the Property to serve as the family home. Mr. Roslewicz also maintains that this action is time-barred because Deutsche Bank had 120 days to request corrections to the Deed after it was executed. Mr. Roslewicz contends that Deutsche Bank should have reviewed and amended the Deed at settlement. Mr. Roslewicz also states that he is working with NCALL Research, Inc. to modify the loan with Wells Fargo Home Mortgage and cure the default, and that it would be "unjust" to modify the Deed because Mr. Roslewicz "fully intends to cure the default and repay … the full amount of the mortgage through loan modification."
A lengthy delay between the filing and resolution of Deutsche Bank's motion largely is attributable to various extensions granted by the Court to afford the Roslewiczes time to consult counsel, along with a series of serious and unfortunate health issues confronted by Mr. Roslewicz. On June 3, 2014, I heard argument on Deutsche Bank's motion.
Summary judgment should be awarded if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When considering a motion for summary judgment, the evidence and the inferences drawn from the evidence are to be viewed in light most favorable to the nonmoving party. A party seeking summary judgment bears the initial burden of showing that no genuine issue of material fact exists. If the movant makes such a showing, the burden then shifts to the non-moving party to submit sufficient evidence to show that a genuine factual issue, material to the outcome of the case, precludes judgment before trial. The non-moving party must do more than simply allege the existence of a disputed factual ...