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LSF9 Master Participation Trust v. McKinney

Superior Court of Delaware

November 30, 2017

LSF9 Master Participation Trust Plaintiff(s)
v.
Kevin J. McKinney, Sr. and Michael D. Satchell aka Michael Satchell Defendant(s)

          Submitted: August 16, 2017

         Upon Defendant's Motion to Vacate Sheriff's Sale, DENIED.

          Daniel T. Conway, Esq., ORLANS PC, Attorney for Plaintiff(s) LSF9 Master Participation Trust.

          Kevin J. McKinney S., N. Andrews Ave., Fort Lauderdale, pro se, and Michael D. Satchell, Rehoboth Beach, pro se, Defendants.

          OPINION

          M. Jane Brady Superior Court Judge.

         PROCEDURAL BACKGROUND

         On December 2, 2015, Plaintiff filed a residential foreclosure action against the Defendants, regarding the real property located at 21117 Laguna Drive, Rehoboth Beach, Delaware 19971 ("Property"). The Complaint alleged the Defendants failed to pay the monthly installments in accordance with the Mortgage. An Affidavit in Support of Amounts Due was attached to the Complaint, indicating that the total amount owed at the commencement of the foreclosure action, was $304, 355.17. The action was initially filed as Mediation Eligible.[1]Initial Summons for service were returned as "non-est" by the Sussex County Sheriff. Service on the Defendants was perfected by posting the property and by certified mail, return receipt requested, to the Property and to Sawgrass Community Association through the property management company. The return receipt for the Property was signed on December 21, 2015 by an individual by the name of Cheryl DiFonzo. The receipt for the Sawgrass Community Association was signed on December 30, 2015. Plaintiff discovered the property was not occupied by the Defendants through Sheriffs Returns of the summons. Accordingly, on March 8, 2016, Plaintiff moved to have this case removed from the Automatic Residential Mortgage Foreclosure Mediation Program pursuant to Administrative Directive 2013-2, that a property must be owner occupied to be subject to the Mediation Program. Copies of Plaintiff s request were sent to the Property and to Defendants' address in Florida on March 3, 2016.[2] Plaintiffs request was approved on April 8, 2016. Defendant Michael Satchell filed notice in this Court that he had filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Florida.[3] On August 25, 2016, Defendant, Michael D. Satchell's Chapter 7 Bankruptcy matter was closed, and the foreclosure action resumed. On February 7, 2017, an entry of judgment by default was ordered by this Court as neither Defendant had filed an Answer to the Complaint.

         On April 27, 2017, Plaintiff initiated the Sheriffs Sale process by filing a writ of levari facias. The Sussex County Sheriff exposed the Property to public auction on July 18, 2017. There were no third party bidders, and the Property reverted to Plaintiff for $332, 912.00. On August 10, 2017, before the confirmation of sale which was scheduled for August 25, 2017, Defendants filed an "Answer to the Complaint, " requesting the Court to set aside the Sheriffs Sale.

         PARTIES' CONTENTIONS

         Defendants assert that the only correspondence that they received concerning this matter was the receipt of Notice to Lien Holders, Tenants Etc, filed on July 13, 2017, informing the parties of the Sheriffs Sale scheduled on July 18, 2017. Defendants claim they were "unaware of any allegations to this Plaintiff, " and they have not received a Notice of Intent to Foreclose.[4]Defendants allege they were not aware of any Affidavit in Support of Amounts Due. Defendants claim that they entered into a "Relocation Incentive Program Agreement" with the servicing agent, Caliber Home Loans. Defendants state they are "aware that the Plaintiff(s) has many pending law suits, Class action suits, AG investigations, etc." Defendants request the Court to set aside the Sheriffs Sale.

         Plaintiff contends that rules and regulations governing scire facias foreclosure actions were followed. The Service of Complaint was perfected by the Sheriff pursuant to Rule 4(f)(4), and the Defendants raised no allegations that would call into question the validity of the Sheriffs Sale.[5] Plaintiff requests the Court confirm the Sheriffs Sale.

         DISCUSSION

         Delaware Superior Court Civil Rule 69(d) provides:

Return of sheriff s sales of real estate shall be made on the third Monday of the month succeeding the date of the sale and applications to set aside such sales shall be made on or before the first Thursday succeeding said return date, and all such sales not objected to on or before the first ...

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