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The Bank of New York Mellon v. Pearson

Superior Court of Delaware

December 19, 2017

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE (CWABs 2006-SD2) Plaintiff,
v.
JEFFRY S. PEARSON THE UNITED STATES OF AMERICA Defendant.

          Submitted: November 21, 2017

         Upon Plaintiff's Motion for Summary Judgment GRANTED

          ORDER

          ANDREA L. ROCANELLI, JUDGE.

         This is a mortgage foreclosure case. Upon consideration of the Motion for Summary Judgment filed by Plaintiff The Bank of New York Mellon ("Plaintiff"); the Superior Court Civil Rules; the facts, arguments, and authorities set forth by the parties; statutory and decisional law; and the entire record in this case, the Court hereby finds as follows:

         1. On October 25, 2005, Defendant Jeffry Pearson ("Defendant") executed a mortgage ("Mortgage") on property located at 806 North Madison Street, Wilmington, Delaware 19801 ("Property") to Best Rate Funding Corp. ("Best Rate"). The Mortgage defines Defendant as the "Borrower" and Best Rate as the "Lender."[1] The Mortgage defines "Note" as "the promissory note signed by Borrower and dated October 25, 2005. The Note states that Borrower owes Lender NINETY-SEVEN THOUSAND FIVE HUNDRED AND 00/100 Dollars [$97, 500.00]."[2]

         2. Best Rate subsequently assigned its entire interest in the Mortgage to The Bank of New York, as Trustee for benefits of The Note Holders CWABS, Inc. Asset-Backed Notes, Series 2006-SDR, which in turn assigned its interest to Plaintiff.[3]

         3. Defendant failed to pay monthly installments on the Mortgage as they came due.

         4. Plaintiff filed a Scire Facias Sur mortgage foreclosure complaint on August 21, 2016, seeking the principal sum remaining on the Mortgage ($95, 172.39), in addition to interest, late charges, and legal fees. Defendant answered the complaint on March 22, 2017. A Final Mediation Record was filed on May 18, 2017, indicating that Defendant failed to appear and that the foreclosure action could proceed.

         5. A scire facias sur mortgage action "is an in rem proceeding used to foreclose on a mortgage."[4] It is well-settled in Delaware that there are a limited number of defenses available in a mortgage foreclosure action.[5] In Shrewsbury, the Delaware Supreme Court reiterated that the "only defenses available in a mortgage foreclosure action [are] payment of the 'mortgage money, ' satisfaction or a plea in avoidance of the mortgage."[6] A plea in avoidance challenges the validity of "the original mortgage sued upon."[7] Pleas in avoidance include "an act of God, assignment of cause of action, conditional liability, discharge, duress, exception or proviso of statute, forfeiture, fraud, illegality of transaction, nonperformance of condition, precedent, ratification, unjust enrichment, and waiver."[8]

         6. Defendant did not plead any of the limited defenses available in a mortgage foreclosure action in his answer.

         7. However, Defendant did raise various other affirmative defenses, including lack of personal jurisdiction for Plaintiff's failure to effect service of the complaint within 120 days, as required by Superior Court Civil Rule 4(j) ("Rule 4(j)"). By Order dated August 23, 2017, this Court granted Plaintiff's Motion for Enlargement of Time for Service of Complaint, finding that Plaintiff demonstrated good cause Rule 4(j) to excuse the untimely service. The Court extended the time to serve until January 17, 2017, the date on which service had been accomplished.

         8. Plaintiff subsequently filed its motion for summary judgment on November 6, 2017. Defendant opposes Plaintiff's motion.

         9. The 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."[9] 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.[10] At the motion for summary judgment phase, the Court must view the facts "in the light most favorable to the non-moving party."[11]

         10. Defendant claims that there are several disputes of material fact that preclude summary judgment in this ...


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