Submitted: January 5, 2015
Upon Consideration of Defendant 1971 Windswept Drive Trust's Motion to Dismiss DENIED
Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff.
John Murdoch Crane, III, pro se. Kathleen D. Crane, pro se.
Constance Marie Crane, pro se.
Theodore A. Kittila, Esquire, Greenhill Law Group, LLC, Wilmington, Delaware for Defendant
Robert B. Young J.
Nationstar Mortgage, LLC ("Plaintiff") seeks to foreclose on real property ("Property") currently held by 1971 Windswept Drive Trust ("Defendant"). Following an assignment of the Mortgage, Defendant became the mortgagee. This action was initially filed in the Court of Chancery.
However, upon discovering that it had a remedy at law, Plaintiff transferred the suit to the Superior Court. Defendant moves to dismiss the action, pursuant to Superior Court Civil Rule 12(b)(6), arguing that Plaintiff's claim fails due to the doctrine of judicial estoppel. As per Defendant, in the Chancery Court matter, Plaintiff maintained that the Mortgage was not filed under seal. In the present action, Plaintiff avers that the Mortgage is under seal. Defendant contends that Plaintiff should be estopped from so arguing.
The Court DENIES Defendant's Motion as, although these positions are inconsistent, neither the Chancery Court, nor this Court, relied upon the prior contrary position in making a ruling. Thus, the doctrine of judicial estoppel is not applicable.
FACTS AND PROCEDURE
On April 24, 2009, John Murdoch Crane, Jr. ("Crane, Jr."), executed a Home Equity Conversion Mortgage (the "Mortgage") on the Property. Crane, Jr. passed away on June 20, 2012, leaving the Property to his heirs John Murdoch Crane, III, Kathleen D. Crane, and Constance Marie Crane ("Heir Defendants"). The Property was then deeded to Defendant.
Upon the death of Crane, Jr., Plaintiff,, who acquired the Mortgage by assignment from the original mortgagee, issued a Notice of Default, demanding payment in full. On January 24, 2014, Plaintiff filed a mortgage foreclosure action in the Delaware Court of Chancery, seeking an equitable remedy. The suit was filed against both Defendant and the Heir Defendants. After purportedly discovering that the Mortgage was filed under seal, ...