Submitted: December 2, 2016
Below: Superior Court of the State of Delaware C.A.No.
STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.
6th day of February 2017, upon consideration of
the briefs of the parties and the record in this case, it
appears to the Court that:
appellant, Mary Jean Legg, filed this appeal from a March 24,
2016 Superior Court order granting default judgment in favor
of the appellee, Nationstar Mortgage LLC, and an October 16,
2015 Superior Court order denying Legg's motion to allow
mediation. We find no merit to Legg's appeal.
Accordingly, we affirm the Superior Court's judgment.
July 21, 2015, then-plaintiff EverBank filed a scire
facias sur mortgage complaint against Legg in the
Superior Court. The action was subject to the Superior
Court's Residential Mortgage Foreclosure Mediation
Program. The complaint alleged that Legg had failed to pay
monthly installments on her mortgage. All allegations had to
be answered by affidavit in accordance with 10 Del.
C. § 3901.
August 19, 2015, Legg filed an answer to the complaint. She
did not answer by affidavit as required by 10 Del.
C. § 3901. Legg admitted that she had not paid
monthly installments on her mortgage, but claimed that she
never had the income to pay off the loan and the lender set
her up for failure.
Mediation under the Automatic Residential Mortgage
Foreclosure Mediation Program was scheduled for September 21,
2015. Legg failed to appear for the mediation. The mediator
filed a final mediation record reflecting that Legg failed to
appear, the mediation process was complete, and the
foreclosure action could proceed.
October 1, 2015, Legg filed a motion to allow mediation. Legg
claimed she was unable to attend the September 21, 2015
mediation due to a death in the family and had been denied a
continuance. EverBank opposed the motion. According to
EverBank's counsel, a mediation program staff person
informed him that someone called on behalf of Legg before the
mediation and stated Legg did not have the necessary
paperwork for the mediation and had not met with a housing
counselor. The caller did not request a continuance due to a
death in the family.
October 16, 2015, the Superior Court held a hearing on
Legg's motion. Legg and her fiance told the Superior
Court that Legg had not attended the mediation due to her
mental state after learning her aunt/godmother was dying a
week before the mediation. The Superior Court denied
Legg's motion, but ordered EverBank to meet with Legg
once Legg completed the necessary paperwork and to determine
if there were any options other than foreclosure.
November 16, 2015, Legg filed a letter appeal of the Superior
Court's order in the Superior Court. The Superior Court
held the letter was untimely to the extent it was a motion
for reargument and filed in the wrong forum to the extent it
was a notice of appeal. In a letter dated November 17, 2015,
EverBank's counsel informed the Superior Court that Legg
and her fiance failed to appear for a meeting scheduled for
that day. On December 8, 2015, Legg filed a notice of
interlocutory appeal in the Superior Court. The Superior
Court held the notice was untimely to the extent it was a
motion for reargument and untimely to the extent it was an
application for certification of an interlocutory appeal.
January 25, 2016, Nationstar, as the new assignee of the
mortgage, filed a motion for default judgment. In
support of its motion, Nationstar argued that Legg failed to
answer the complaint by affidavit under 10 Del. C.
§ 3901, she did not deny she had failed to make mortgage
payments when due, and she did not specify the sum she
admitted to be due. Legg did not file a response to the
motion for default judgment. The Superior Court held a
hearing on the motion for default judgment on February 19,
2016. The Superior Court continued the motion because Legg
planned to borrow money under the Delaware Mortgage
Assistance Program to cure the default and settlement was
scheduled for February 24, 2016.
February 26, 2016, Nationstar informed the Superior Court
that settlement had been rescheduled for March 18, 2016 so
Legg could have more time to obtain the funds necessary for
settlement. Nationstar requested that the Superior Court
grant the motion for default judgment, which would not
prevent Legg from proceeding to settlement and curing the
default, because Legg had failed to satisfy numerous
opportunities to resolve the matter. The Superior Court
informed the parties that it would grant the motion for
default judgment unless settlement proceeded on March 18,
Settlement did not proceed on March 18, 2016. The Superior
Court granted Nationstar's motion for default judgment ...