Date Submitted: September 8, 2014
Upon Plaintiff's Motion for Summary Judgment. Granted.
Janet Z. Charlton, Esquire, McCabe Weisberg & Conway, P.C., Attorney for Plaintiff
William R. Smith, W. Ralph Smith, and Myla Gomez, Pro se Defendants
RICHARD F. STOKES, JUDGE
This matter is presently before the Court on the motion of Plaintiff, JP Morgan Chase Bank, National Association ("Plaintiff") for summary judgment. The Court finds there are no material issues of fact and Plaintiff is entitled to summary judgment as a matter of law. Procedurally a default judgment may be entered; however, Plaintiff filed a motion for summary judgment. For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED.
II. FACTS AND PROCEDURAL POSTURE
Plaintiff's motion arises out of a mortgage validly executed and delivered by Belva B. Smith. On October 26, 2006, Belva B. Smith signed a mortgage for the property known as 304 Pine Court, Lot 35, Mill Pond Subdivision Selbyville, Delaware 19975. The mortgage then was delivered to the Mortgage Electronic Registration System as a nominee for Millennium Bank, National Association. The mortgage was subsequently assigned to Plaintiff. The property was transferred by deed to the Belva B. Smith Living Trust ("Trust") and Myla Gomez prior to Belva B. Smith's death on October 12, 2011. The Estate was the successor in interest of the property, and William R. Smith is the executor of the Estate of Belva B. Smith.
On October 1, 2009, the mortgage fell into default and a Notice of Intent to foreclose was sent on January 7, 2013. After failure to cure, Plaintiff filed its Complaint on August 6, 2013 against the executor of the estate, William R. Smith; Trustee of the Belva B. Smith Living Trust, W. Ralph Smith; and Myla Gomez (collectively "the Defendants") in this in rem scire facias sur mortgage action. Pursuant to 10 Del. C. § 3104, certified letters and first-class mail were sent to W. Ralph Smith and Myla Gomez to their last known address on August 15, 2013. The certified mail was returned unclaimed and the first-class mail was not returned. On August 22, 2013, the Sheriff personally served William R. Smith.
Thereafter, William R. Smith requested a continuance of forty-five days to respond to the complaint on August 26, 2013. Discovery requests were served upon Plaintiff on November 19, 2013.
Plaintiff filed responses on November 26, 2013. The case remained idle on the docket until notice letters were sent out on May 28, 2014 pursuant to Superior Court Civil Rule 41(e). Plaintiff subsequently filed a motion for summary judgment on June 1, 2014, seeking foreclosure of its interest in the above-mentioned property. In response, the Defendants filed an answering brief in opposition to the Plaintiff's motion. Plaintiff filed a reply brief in support of its motion for summary judgment on September 5, 2014.
III. STANDARD OF REVIEW
The Court may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." The moving party bears the initial burden of showing no material issues of fact are present. If the moving party properly supports their motion, the burden then shifts to the non-moving party to rebut the contention that no material issues of fact exist. In considering a motion for summary judgment, the Court must view the ...