B A C HOME LOANS SERVICING LP F/K/A COUNTRYWIDE HOME LOANS SERVICING LP, Plaintiff,
DIANA P. CUNNINGHAM AND ANDRE CUNNINGHAM, Defendants.
Submitted: April 25, 2017
Honorable Andrea L. Rocanelli
Plaintiffs Petition for Writ of Possession GRANTED
a case arising from Defendants' default on their mortgage
and the subsequent foreclosure proceedings. After sheriffs
sale of the subject property was complete and in response to
Plaintiffs Petition for Writ of Possession, Defendants
appeared for the first time and made argument regarding a
claimed modification of their loan. Defendants asserted that
their communications with the various loan servicers in this
case were inconsistent with Plaintiffs representations to the
Court, and there was some concern that the actual dealings
between the parties diverged from the legal posture presented
during the proceedings. Accordingly, by Order dated October
11, 2016, this Court denied Plaintiffs Petition for Writ of
Possession pending an evidentiary hearing. Several hearings
were held and the parties supplemented the record with
written submissions. The Court is now satisfied that the
record is fully developed and the issue of Defendants'
alleged loan modification can be decided as a matter of law.
consideration of the Petition for Writ of Possession filed by
Plaintiff; statutory and decisional law; the Superior Court
Civil Rules; the facts, arguments, and legal authorities set
forth by the parties; and the entire record in this case, the
Court hereby finds as follows:
Plaintiff is a Delaware limited partnership that operates as
a subsidiary of Bank of America, N. A. ("Bank of
America"). Defendants are individuals and citizens of
Delaware who are self-represented litigants.
June 13, 2007, Defendants executed a promissory note
("Note") for a $600, 619.00 loan in favor of the
Note's original holder, Countrywide Bank, FSB, a
subsidiary of Countrywide Financial Corp. (collectively
"Countrywide"). On the same day, Defendants
executed and delivered a mortgage ("Mortgage") on a
single-family residential property located in Middletown,
Delaware ("Property") as security for the Note.
Defendants have lived at the Property since June 2007, and
currently reside at the Property with their family.
their terms, the Note and Mortgage are transferable without
notice to the borrower. Moreover, the Mortgage provides that
a sale or transfer of the Note or Mortgage may result in a
change in the borrower's loan servicer. The loan servicer
assumes certain rights under the Mortgage, including the
collection of periodic payments from the borrower. The
Mortgage permits the holder of the Note to foreclose on the
Property if Defendants fail to make timely payments at the
July 2008, Bank of America acquired Countrywide and obtained
substantially all of Countrywide's home mortgage
business. Countrywide became a wholly owned subsidiary of
Bank of America. Bank of America ceased using the Countrywide
name in April 2009. As a Bank of America home mortgage
subsidiary, Plaintiff is the current owner of the Note.
Defendants have had three separate loan servicers since 2008.
Bay view Loan Servicing, LLC was Defendants' first loan
servicer. OCWEN Loan Servicing, LLC was Defendants'
second loan servicer. Caliber Home Loans, Inc. is
Defendants' third and current loan servicer.
January 13, 2010, Plaintiff filed a complaint in Superior
Court seeking entry of judgment against Defendants for the
principal sum owed on the Note. According to the complaint,
Defendants failed to pay required monthly installments
pursuant to the Mortgage when due. The complaint does not
specify exactly when Defendants stopped making monthly
payments pursuant to the Mortgage. However, Plaintiffs review
of Defendants' payment history as reflected in
Plaintiffs' Statement of Amount Due indicates that
Defendants owed $112, 554.04 in late charges and unpaid
interest at the time Plaintiff filed the complaint.
Defendants concede that they are currently in default of
payment on the Mortgage, and have been for several years.
Sheriffs Office made numerous attempts to serve process on
Defendants at the Property. Service of process was eventually
successful on May 28, 2010. Nevertheless, Defendants failed
to file an answer or otherwise respond to Plaintiffs
the meantime, also in 2010, Plaintiff sent a letter to
Defendants offering a trial loan modification pursuant to the
federal Home Affordable Modification Program ("Trial
Modification Offer"). Defendants made payments pursuant
to the Trial Modification Offer at a reduced mortgage rate
for a six-month period. After accepting payments for six
months, Plaintiff rejected the loan modification and returned
all payments received during the six-month period.
letter dated April 21, 2011, after the case docket reflected
an extended period of inactivity, the Court requested that
Plaintiff provide a status update. In response, Plaintiff
requested that the Court transfer the case to the dormant
docket pending the outcome of an agreement between Plaintiff
and Defendants whereby Plaintiff allowed Defendants