U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
KATHLEEN C. KEATH, Defendant.
Submitted: July 18, 2017
Plaintiff's Motion for Summary Judgment GRANTED
Honorable Andrea L. Rocanelli J.
a mortgage foreclosure case. Upon consideration of the Motion
for Summary Judgment filed by Plaintiff U.S. Bank National
Association ("Plaintiff"); the Superior Court Civil
Rules; the facts, arguments, and authorities set forth by
Plaintiff; statutory and decisional law; and the entire
record in this case, the Court hereby finds as follows:
February 6, 2006, Defendant Kathleen Keath
("Defendant") executed a mortgage
("Mortgage") on property located at 708 Staghorn
Drive, New Castle, Delaware 19720 ("Property") to
Mercantile Mortgage, LLC ("Mercantile"). The
Mortgage defines Defendant as the "Borrower" and
Mercantile as the "Lender." The Mortgage defines
"Note" as "the promissory note signed by
Borrower and dated February 06, 2006. The Note states that
Borrower owes Lender TWO HUNDRED TWENTY THOUSAND AND 00/100
Mercantile subsequently assigned its entire interest in the
Mortgage to Wells Fargo, which in-turn assigned its interest
to Mortgage Electronic Registration Systems, which in-turn
assigned its interest to Plaintiff.
Defendant has failed to make payments on the Mortgage since
approximately August 1, 2013.
Plaintiff filed an Scire Facias Sur mortgage
foreclosure complaint on April 25, 2016. A Final Mediation
Record was filed on October 20, 2016 indicating that the
parties agreed to forgo mediation and proceed with the
foreclosure action. The Defendant then answered the complaint
on October 25, 2016.
scire facias sur mortgage action "is an in
rem proceeding used to foreclose on a
mortgage." Delaware law only recognizes three
possible defenses to a scire facias sur mortgage
action: payment, satisfaction, and plea in
avoidance.Defendant did not plead any of these
defenses in her answer.
Plaintiff filed its motion for summary judgment on March 7,
2017. The Court sent a letter to Defendant on March 8, 2017,
advising that Defendant's response to the motion for
summary judgment should be filed by April 10, 2017 or the
motion would be considered unopposed. The Court sent another
letter to Defendant on April 28, 2017 stating that no
response had been received and the motion would be considered
by the Court as unopposed. Defendant has not responded to
these communications or submitted any opposition
Plaintiff's motion for summary judgment.
the meantime, on April 17, 2017, the Delaware Supreme Court
issued its opinion in Shrewsbury v. The Bank of New York
Mellon. In Shrewsbury, the Supreme Court
held that a mortgage holder "must be a party entitled to
enforce the obligation … which the mortgage secures in
order to foreclose on the mortgage." By letter dated
June 12, 2017, the Court requested supplemental submissions
from Plaintiff and also advised Defendant that a response to
any supplemental submission was due by July 14, 2017. In
order to comply with Shrewsbury, Plaintiff filed a
supplemental exhibit indicating that Plaintiff received an
endorsement from Mercantile on the Note underlying the
Mortgage. Defendant did not respond.
Court may grant summary judgment only where the moving party
can "show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." The moving party bears the
initial burden of proof and, once that is met, the burden
shifts to the non-moving party to show that a material issue
of fact exists. At the motion for summary judgment phase,
the Court must view the facts "in the light most
favorable to the non-moving party."
Plaintiff is entitled to summary judgment. Defendant does not
dispute that she is in default of the Mortgage and did not
plead any cognizable defenses. Plaintiff is the valid
assignee of the Mortgage and is entitled to enforce the
THEREFORE, this 20th day of September 2017,
Plaintiff's Motion for Summary Judgment is hereby GRANTED
and JUDGMENT is entered in favor of Plaintiff U.S. ...