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Ievoli v. Delaware State Housing Authority

Superior Court of Delaware

November 7, 2018

MICHELLE R. IEVOLI, Plaintiff,
v.
DELAWARE STATE HOUSING AUTHORITY, Defendant.

          Submitted Date: August 16, 2018

         On Defendant's Motion to Dismiss Granted.

          Michelle R. Ievoli, Pro Se.

          Benjamin P. Chapple, Esquire. Reed Smith LLP, Attorney for Defendant.

          Calvin L. Scott, Jr. Judge.

         In order to succeed in a negligence action a plaintiff must overcome certain procedural hurdles to survive a Motion to Dismiss the Complaint. Following a foreclosure action Plaintiff filed a separate negligence action against the mortgage holder claiming injuries sustained as a result of the mortgage servicer's actions. The issue before the Court is whether Plaintiff has brought her action within the statute of limitations, and pleaded with sufficient particularity an action for negligence.

         Facts and Procedural Background

         The complaint before the Court was filed by Plaintiff on May 29, 2018. Prior to this action Plaintiff has had at least two prior actions before the courts in this state which are relevant. In 2008, Plaintiff filed for bankruptcy in the United States Bankruptcy Court for the District of Delaware. That action was dismissed for failure to make plan payments.[1] In 2015, the Delaware State Housing Authority (DSHA) initiated a foreclosure action on Defendant's home before this Court. A final judgment in favor of DSHA was entered on September 25, 2017. Plaintiff did not appeal that judgment. After the Sheriff's Sale of the property in the foreclosure action, DSHA sought and was granted a Writ of Possession on May 29, 2018, with no action to be taken for 60 days. Also on May 29, 2018, Ievoli filed her pro se complaint in this Court claiming Negligence on the part of DSHA related to the mortgage of the property. At the same time of filing the Complaint Ievoli requested a stay on the writ of possession. This request was denied. On July 23, 2018, Ievoli filed an emergency request seeking a continuance of the stay on the Writ of Possession pending adjudication of this action. The request for an emergency stay was also denied.

         Parties Assertions

         Before the Court is Plaintiff's Complaint against DSHA, DSHA's Motion to Dismiss, and Plaintiff's response. Plaintiff's complaint seeks monetary damages for mortgage payments she was precluded from making during the foreclosure process, physical and emotional distress, lost wages, and legal expenses.[2]

         Plaintiff simply claims negligence on the part of DSHA. The Complaint appears to claim DSHA was negligent in its selection and supervision of Bank of America (BOA) as Plaintiff's mortgaging servicer. Plaintiff highlights newspaper articles and judgments against BOA as proof DSHA had notice of questionable practices ongoing with BOA's mortgage business. Specifically, Plaintiff indicates a consent judgment wherein BOA confessed to illegal actions gave notice to Defendant of wrongdoing, and thereafter Defendant's continued relationship with BOA was negligent. Plaintiff claims DSHA owed a duty "to be aware of the legal proceedings and the ongoing Sigtarp investigations and monitoring" and that failure to take action amounts to gross negligence.[3] Plaintiff's claim seeks to hold DSHA liable for its BOA's actions. Plaintiff claims DSHA owed a duty, to oversee BOA's actions in servicing her mortgage, and was "responsibly negligent" for allowing BOA to continue in its role as a "subcontractor" for DSHA.[4]

         Plaintiff's other claims include the fact BOA misspelled her surname at some time, resulting in negative credit reporting, leading to substantial emotional distress and expenditure of energy to correct, and issues with a proof of claim filed with her claim for bankruptcy. Plaintiff finally prays upon the Court to indicate the proper venue for her claims for relief.

         Defendant's Motion to Dismiss is based on four arguments: 1) the Complaint is untimely, therefore barred by the statute of limitations, 2) the complaint fails to articulate a viable claim for relief, 3) allegations in the Complaint that mortgage payments were made under the loan, or that the foreclosure action was illegal needed to be raised in the foreclosure action, and therefore have been waived, and 4) any claims for damages based on the foreclosure is barred by the doctrines of res judicata and collateral estoppel.

         Standard of Review

         The test for dismissal under Superior Court Rule 12(b)(6) is whether the Plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.[5] In making its determination, the Court must accept all well-pleaded allegations in the complaint as true and draw all reasonable factual inferences in favor of the non-moving party.[6] Therefore, if the Plaintiff can recover ...


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