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Colahar v. Wells Fargo Bank N.A.

United States District Court, D. Delaware

October 31, 2014


Rudolph and Jan'e Colahar, Plaintiffs, Pro se, Bear, Delaware.

Geoffrey Graham Grivner, Esquire, Buchanan Ingersoll & Rooney P.C., Wilmington, Delaware. Counsel for Defendants.

Page 609


Sue L. Robinson, District Judge.


Plaintiffs Jan'e Colahar (" Jan'e" ) and Rudolph Colahar (" Rudolph" ) (together " plaintiffs" ) proceed pro se and have paid the filing fee. They filed this lawsuit against defendants Wells Fargo Bank N.A. (" Wells Fargo" ) and U.S. Bank, National Association (" U.S. Bank" ) (together " defendants" ) alleging the wrongful foreclosure of real property located at 53 Hempstead Drive, Newark, Delaware. (D.I. 2.) Before the court are numerous motions filed by the parties. (D.I. 14, 19, 20, 22, 26, 27, 29)


The court construes plaintiffs' initial pleading, " notice of lis pendens," as a complaint. The complaint was filed on April 7, 2014. (D.I. 2) It does not appear from the court docket tat the parties have been served as required by Fed.R.Civ.P. 4.

The complaint states that " this action comes from a foreclosure issue involving a bankruptcy discharge." (D.I. 2, ¶ 3) The complaint alleges that Wells Fargo is using an in rem proceeding to take the property in question. ( Id. at ¶ 7) Wells Fargo is the servicer of the mortgage on the property and U.S. Bank is the holder/owner of the mortgage. (D.I. 14) The complaint refers to an affidavit of obligation served upon Wells Fargo, alleges that Wells Fargo has not rebutted the affidavit, that the affidavit creates a commercial lien when not rebutted, and that the surety for the affidavit of obligation is the real property at issue. (D.I. 2, ¶ ¶ 8-11) The complaint alleges that property was identified by the bankruptcy trustee on grounds there are liens against the property of greater value than the property itself. ( Id. at ¶ 4) The complaint challenges a judgment as " void" and alleges that " the expected end results are an offset of the balance that the alleged bank claim[s] is owed on the property, even though the house was discharge[d] in bankruptcy." ( Id. at ¶ ¶ 2, 12)

The court takes judicial notice that the real property at issue is the subject of a foreclosure action in the Superior Court of the State of Delaware in and for New Castle County (" Superior Court" ), U.S. Bank v. Colahar, C.A. No. N09L-11-024 JAP (Del. Super.), that commenced on November 4, 2009. (D.I. 10, Ex. A) Default judgment was entered against plaintiffs on May 27, 2010. (D.I. 14, ex. A) The foreclosure proceeding was stayed after Jan'e filed a Chapter 7 bankruptcy petition, In re Jane Colahar, Bankr. No. 12-12014-BLS. ( Id. at ex. B)

Page 610

Jan'e's bankruptcy proceeding was dismissed on August 27, 2012 following a motion to dismiss by the bankruptcy trustee noting that Jan'e had filed a Chapter 13 bankruptcy case on September 13,2010, Bankr. No. 10-12868 (converted to a Chapter 7 on January 18, 2011), that Jan'e was granted a discharge on April 19, 2011, making dismissal appropriate. ( Id. at ex. C) Jan'e also filed a lawsuit against U.S. Bank contesting the foreclosure proceedings, Colahar v. U.S. Bank, Civ. No. N11 C-04-128 JAP (Del. Super.). ( Id. at ex. D) The case was dismissed with prejudice on August 30, 2012. ( Id. at ex. E)

The property was scheduled for a sheriffs sale on April 8, 2014, but the sale was stayed when Rudolph filed a Chapter 13 petition for bankruptcy in the United States Bankruptcy Court for the District of Maryland (" Maryland Bankruptcy Court" ) on April 3, 2014, In re: Colahar, Bankr. No. 14-15282-PM (Bankr. D. Md.). (D.I. 10, exs. A, B, C) Rudolph also filed two other bankruptcy petitions in the Maryland Bankruptcy Court, both of which resulted in an automatic stay. See In re: Colahar, Bankr. No. 11-25341 (Bankr. D. Md.) filed July 27, 2011; In re: Colahar, Bankr. No. 13-23620 (Bankr. D. Md.) filed August 9,2-13. On April 22,2014, the Maryland Bankruptcy Court dismissed In re: Colahar, Bankr. No. 14-15282-PM after Rudolph failed to pay the required filing fee. ( Id. at Ex. D) In the same order, the Maryland Bankruptcy Court terminated the automatic stay that had been imposed pursuant to 11 U.S.C. § 362(a). ( Id.) On July 17, 2014, plaintiffs filed a writ of de novo alleged fraud upon the court in the State foreclosure proceeding. (D.I. 24, ex.)

Defendants Wells Fargo and U.S. Bank move to dismiss the complaint for failure to state a claim upon which relief may be granted and pursuant to the Rooker-Feldman doctrine.[1] (D.I. 14) In turn, plaintiffs filed the following motions: motion for declaratory judgment (D.I. 19),[2] motion for time to respond to defendants' motion to dismiss (D.I. 20), motion for summary judgment (D.I. 22),[3] motions to amend complaint (D.I. 26, 29), and motion for entry of default of defendants (D.I. ...

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