Submitted: July 18, 2017
Plaintiffs Motion for Summary Judgment: GRANTED.
Russell K. Hinkle, pro se, Defendant.
Keil Cartwright, Esquire, Atlantic Law Group, LLC, Attorney
for Plaintiff Wells Fargo Bank, N.A.
W. Wharton, J.
1st day of August 2017, upon consideration of Plaintiff Wells
Fargo Bank, N.A.'s ("Plaintiff) Motion for Summary
Judgment, Defendant Russell K. Hinkle's
("Defendant") Response, argument on June 27, 2017,
and Plaintiffs Supplement to the Motion, it appears to the
May 7, 2009, Defendant executed and delivered a mortgage
securing a promissory note to Mortgage America, Inc. for real
property located in Wilmington, Delaware. Mortgage America,
Inc., for valuable consideration, duly assigned its entire
interest in the mortgage to Plaintiff.
Defendant defaulted on the loan by failing to pay the monthly
installments of the mortgage. The mortgage permits Plaintiff
to accelerate the sum secured by the mortgage and foreclose
on the property for the collection of the debt owed.
Defendant was given proper notice and the opportunity to cure
the default, but Defendant failed to do so.
August 19, 2016, Plaintiff filed a scire facias sur
mortgage action against Defendant.
parties participated in mandatory mediation on December 21,
2016. Mediation was unsuccessful because the parties failed
to come to an agreement. Specifically, the mediation report
states that the "borrower does not wish to participate
in the program and wishes to pursue his own legal
March 27, 2017, Plaintiff filed a Motion for Summary Judgment
("Motion"). Plaintiff argues Defendant has failed
to plead one of the limited allowable defenses to a scire
facias sur mortgage action. Moreover, Plaintiff argues
Defendant has failed to raise any genuine issues of material
April 10, 2017, Defendant filed his response to Plaintiffs
Motion. Defendant argues Plaintiff "has failed to
produce [the] Original Wet Signature note signed by me on the
day of my purchase of 312 Mattes Avenue. Wells Fargo does not
hold the original documents. Therefore Wells Fargo does not
have legal standing to foreclose on my home 312 Matthes
Avenue." Additionally, Defendant argues Plaintiff
never informed him that it was going to securitize his
loan. Defendant states that "it is [his]
understanding that in order to securitize a loan that loan
must first be paid off."
Court scheduled oral argument on June 27, 2017. Plaintiffs
counsel appeared before the Court, but Defendant did not. The
Court ordered Plaintiffs counsel to file a supplement to the
Motion to include the promissory note in light of the
Delaware Supreme Court's recent decision in
Shrewsbury v. Bank of N.Y. Mellon.
June 27, 2017, Plaintiff supplemented the Motion by providing
the promissory note. By letter dated June 27, 2017, the Court
notified Defendant that he was able to respond to Plaintiffs