The Bank of New York Mellon FKA The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2005-80CB, Mortgage Pass Through Certificates, Series 2005-80CB, Plaintiff
Pat Tang, Defendant.
Submitted: January 15, 2019
Plaintiff's The Bank of New York Mellon Motion for
Melanie J. Thompson, Esquire, Orlans PC, 4250 Lancaster Pike,
Wilmington, Delaware 19805. Attorney for Plaintiff.
Tang, 6 Bayard Lane, Newark, Delaware 19702. Defendant.
Calvin L. Scott, Jr.
a foreclosure action brought by The Bank of New York Mellon,
(The Bank) assignee to the mortgage and the note, executed by
Defendant on November 23, 2005, for the real property located
at 6 Bayard Lane, Newark, Delaware. The Bank filed a
scire facias sur mortgage complaint against the
Defendant on January 17, 2018. Defendant's answer was
filed on February 13, 2018.
Bank filed this Motion for Summary Judgment on November 20,
2018. The Bank states they are the holder of the original
Note and assignee to the mortgage and therefore entitled to
bring this foreclosure action. The Bank argues Defendant has
not pleaded any allowable defenses and there are no material
issues of fact, therefore Summary Judgment is appropriate.
Answer and Opposition to this Motion, Defendant takes the
position that The Bank lacks standing. Defendant argues The
Bank is not in possession of the original Note, or is not a
proper holder of the Note, and therefore not entitled to
enforce the Note. Defendant raises two issues why Summary
Judgment is inappropriate; (1) The Bank's use of the word
"assignment" when the Note uses the word
"transfer" invalidates the Banks ability to enforce
the Note, and (2) Any transfer of the Mortgage and the Note
is invalid because evidence presented in courts of other
jurisdictions has shown Mortgage Electronic Registration
System, Inc. (MERS) does not transfer promissory notes.
Court may grant Summary Judgment if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to Summary Judgment as a matter of
law." The moving party bears the initial burden
of showing that no material issues of fact are
present. Once such a showing is made, the burden
shifts to the non-moving party to demonstrate that there are
material issues of fact in dispute. In considering a Motion for
Summary Judgment, the Court must view the record in a light
most favorable to the non-moving party. The Court will
not grant Summary Judgment if it seems desirable to inquire
more thoroughly into the facts in order to clarify the
application of the law.
order to foreclose on a mortgage, a mortgage holder must be a
party entitled to enforce the underlying debt, the Note,
which the mortgage secures. Delaware case law continues to
recognize 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. Examples of pleas of avoidance are
"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."
first objection is not one of these recognized defenses, and
is without merit. Terms that are not defined in a statute or
in a contract must be given their ordinary, common
meaning. Assignment is the transfer of rights or
property.When an instrument, such as a note, is
indorsed in blank, the instrument becomes payable to the
bearer and may be negotiated by transfer of possession
alone. The holder of a note can freely transfer
the note through negotiation to another party, and the
receiving party then has the right to enforce the note.
Similarly, under Delaware law the assignment of a mortgage
[…] attested by 1 creditable witness shall be valid
and effectual to convey all the right and interests of the
assignor. Furthermore, the principals of contract
law dictate when the debtor is not a party to a transfer, nor
a third party beneficiary, nor show it sustained some type of
legal harm as a result of the transfer, they do not ...