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Trust v. Tucker

Superior Court of Delaware

April 19, 2017

LSF9 MASTER PARTICIPATION TRUST, Plaintiff,
v.
GREGORY TUCKER aka GREGORY L. TUCKER aka GREG L. TUCKER and KAREN TUCKER aka KAREN K. TUCKER, Defendants.

         In Rem Mortgage Record 20080917-0062897, Parcel No. 10-034.30-137

          MEMORANDUM OPINION GRANTING MOTION FOR SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF

          Eric M. Davis, Judge

         I. INTRODUCTION

         This is an in rem foreclosure action arising from Plaintiff LSF9 Master Participation Fund's mortgage (the "Mortgage")[1] with Defendants Gregory L. Tucker and Karen K. Tucker. The Mortgage covers property located at 1504 Goldeneye Court in New Castle, Delaware (the "Property"). On March 30, 2016, LSF9 Master Participation Fund ("LSF9") filed a scire facias sur mortgage complaint against Mr. Tucker and Ms. Tucker (the "Tuckers") seeking foreclosure of the Tuckers' interest in the Property. After the Tuckers answered the complaint, LSF9 filed its Motion for Summary Judgment in Favor of Plaintiff (the "Motion"). LSF9 argues that summary judgment is appropriate because the Tuckers failed to plead one of the legally recognized defenses available in a scire facias sur mortgage action. The Tuckers filed a Motion to Dismiss Summary Judgment, opposing the relief sought by LSF9. The Tuckers are representing themselves pro se and claim to be Aboriginal Indigenous Moorish-Americans who are free from the jurisdiction of the Court.

         On January 23, 2017, the Court held a hearing on the Motion. All parties appeared at the hearing and were allowed to present their arguments for or against the relief sought by LSF9. After hearing from the parties, the Court took the Motion under advisement. For the reasons set forth below, the Court GRANTS the Motion.

         II. FACTUAL BACKGROUND

         On September 11, 2008, the Tuckers executed and delivered the Mortgage on the Property to SurePoint Lending abn First Residential Mortgage Network, Inc. ("SurePoint").[2]The Mortgage acts as the security instrument for a residential loan in the amount of $323, 023.00 between the Tuckers, identified as the "Borrower, " and SurePoint, identified as the "Lender."[3]SurePoint then assigned its entire interest in the Mortgage to BAC Home Loans Servicing LP, which in turn assigned its entire interest in the Mortgage to Bank of America.[4] After that, Bank of America assigned its entire interest in the Mortgage to Secretary of Housing and Urban Development, which in turn assigned its entire interest in the Mortgage to LSF9.[5]

         The Tuckers then failed to make their monthly installment payments. LSF9 demanded payment and informed the Tuckers that it would, pursuant to the Mortgage, accelerate the balance due if the Tuckers did not render payment. The Mortgage provides that:

         9. Grounds for Acceleration of Debt.

(a) Default. Lender may, except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if:
(i) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment, or
(ii) Borrower defaults by failing, for a period of thirty days, to perform any other obligations contained in this Security Agreement[6]
18. Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may foreclose the Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18, including, but not limited to, attorneys' fees of 5% of the amount decreed for principal and interest (which fees shall be allowed and paid as part of the degree of judgment) and costs of title evidence . . . .[7]

         To date, the Tuckers have failed to render payment in full. As a result, LSF9 gave the Tuckers forty-five days' notice of its intent to foreclose on the Mortgage.

         On March 30, 2016, LSF9 filed a scire facias sur mortgage complaint (the "Complaint") against the Tuckers seeking foreclosure of the Tuckers' interest in the property. On or about April 28, 2016, LSF9 served the Tuckers with the Complaint by leaving a copy with Mr. Tucker. On May 4, 2016, the Tuckers filed an Answer (the "Answer") to the Complaint. The Answer raises a number of allegations and defenses. The Answer is not a paragraph by paragraph response to the allegations raised in the Complaint; instead, the Answer sets forth a series of "disputes" regarding the Mortgage, deed of trust, the assignments, the promissory note and the forty-five notice.[8] In addition, the Answer provides a number of civil actions involving Mortgage Electronic Registration Systems, Inc., and a legal position regarding the difference between payment and discharge under Federal Reserve Notes.[9]

         The parties scheduled a mediation conference for July 6, 2016. At the mediation conference, the Tuckers were offered a trial payment plan and were given until July 31, 2016 to accept the offer. The mediation conference was continued until August 3, 2016. The Tuckers failed to appear at the August 3, 2016 mediation conference and a Final Mediation Record was entered.

         On September 30, 2016, LSF9 filed the Motion, arguing that the Tuckers failed to plead one of the legally recognized defenses in a scire facias sur mortgage action. LSF9 filed a loss mitigation affidavit concurrently with the Motion. LSF9 also provided copies of the Mortgage and the proofs assignment as exhibits to the Complaint.[10]

         On November 3, 2016, the Tuckers filed a Motion to Dismiss Summary Judgment (the "Response"), which the Court treated as the Tuckers' response to the Motion.[11] In the Response, the Tuckers assert various allegations and defenses, most related to their self-proclaimed status as Aboriginal Indigenous Moorish-Americans. Among the items filed by the Tuckers and considered by the Court were:

• The Response and all attachments;
• Notice of Public Records Correction with attached Judicial Notice and Proclamation;
• Treaty of Peace and Friendship between the United States of America, and His Imperial Majesty the Emperor of Morocco;
• The Zodiac Constitution;
• United Nations Declaration on the Rights of Indigenous Peoples;
• House of Representatives Congressional Record-Senate Extract from the [sic] 1916 and attachment regarding James Anthony Traficant, Jr.;
• Pope Francis Sends Obama Powerful Letter Via Attorney [on] July 4th 2016;
• Fiduciary Request Reconveyance dated January 18, 2017;
• Transfer of Inheritance between United States of America Corporation and Greg/Karen El;
• Affidavit of Financial Statement (Exercise of Constitution-Secured Right);
• Writ of Mandamus Case No. N16L-03181-EMD, seeking to compel the Court to honor the ...

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