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B A C Home Loans Servicing LP v. Cunningham

Superior Court of Delaware

May 1, 2017

B A C HOME LOANS SERVICING LP F/K/A COUNTRYWIDE HOME LOANS SERVICING LP, Plaintiff,
v.
DIANA P. CUNNINGHAM AND ANDRE CUNNINGHAM, Defendants.

          Submitted: April 25, 2017

          ORDER

          The Honorable Andrea L. Rocanelli

         Upon Plaintiffs Petition for Writ of Possession GRANTED

         This is 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.[1] 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.

         Upon 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:

         1. 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.

         2. On 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.

         3. Defendants have lived at the Property since June 2007, and currently reside at the Property with their family.

         4. By 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 contract rate.

         5. In 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.

         6. 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.

         7. On 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.

         8. The 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 complaint.

         9. In 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.

         10. By 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 ...


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