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Angelo v. NVR Inc.

United States District Court, D. Delaware

March 12, 2019

RONALD ANGELO, SR., Plaintiff,
NVR, INC. et al., Defendants.

          Ronald Angelo, Sr., Townsend, Delaware. Pro Se Plaintiff.

          Scott G. Wilcox, Esquire, Whiteford Taylor Preston, LLC, Wilmington, Delaware. Counsel for Defendant NVR, Inc.

          Scott Thomas Earle, Esquire, Zarwin, Baum, DeVito, Kaplan, Schaer, Toddy, P.C., Wilmington, Delaware. Counsel for Defendant Commonwealth Land Title Insurance Company.



         Plaintiff Ronald Angelo, Sr. ("Plaintiff'), filed this action on April 6, 2018. (D.I. 1). He appears pro se and has paid the filing fee. Before the Court are several motions filed by the parties including a motion to amend the complaint, motions to dismiss, motions for summary judgment, and motions for conflict of interest. (D.I. 5, 7, 9, 10, 14, 22, 26, 29, 31). Briefing is complete.

         I. BACKGROUND

         This action concerns property located at 611 Southerness Drive in Townsend, Delaware, a September 6, 2000 Maintenance Declaration Odessa National Maintenance Corporation ("Maintenance Declaration") made by Kathryn A. Copper, Atkinson Farm, Inc., and James R. Atkinson (as the Legal Owners) and Odessa National Corp. (with all parties referred to collectively as Declarant) recorded on September 6, 2000 (D.I. 1-1 at 13-22), and a Master Declaration of Covenants and Restrictions for Odessa National Golf Club and Residential Community ("DOC"), recorded on August 5, 2005 (D.I. 1 at 4; D.I. 1-1 at 5). The DOC is made by Odessa National Development Company (as the Developer), and Fieldsboro Development, LLC; Ravenglass, LLC; Camerton, LLC; Robino-Wynnfield II, LLC; and D.R. Horton, Inc.-New Jersey (as the Original Builders), [1] and the DOC states that Odessa National Development Company owns the Southerness sub-community and that Odessa National's intent is to develop a residential golf course. (Id.).

         A deed dated August 21, 2007 between Defendant NVR, Inc. ("NVR") and Rosemary Angelo conveyed property located at 611 Southerness Drive in Townsend, Delaware, to Rosemary Angelo. (D.I. 1-1 at 2-3). The August 21, 2007 deed is subject to August 5, 2005 DOC and the September 6, 2000 Maintenance Declaration. (Id. at 2). The deed indicates that Odessa National Development Company, LLC conveyed the property to NVR on May 25, 2007. (Id. at 2). The Complaint alleges that NVR is the parent company of Ryan Homes, Inc. that sold the property at issue. (Id. at 3, 5). It also alleges that Defendant Commonwealth Land Title Company ("CLT") is a wholly owned subsidiary of Fidelity National Title Insurance, and CLT is Plaintiff's title insurance company. (Id.).

         An August 9, 2013 opinion letter from the New Castle County Executive's Office states that the DOC was not executed in accordance with County law in that it seeks to amend the original Maintenance Declaration in contravention of the terms of that instrument and County law and is being used to improperly extract fees for the maintenance of open space and common facilities (i.e., the golf course) from the homeowners, even though they will not receive ownership under the terms of the instrument. (D.I. 1-1 at 23-31).

         An October 22, 2013 clarification letter from the County Executive's Office states that: (1) the DOC contains covenants and restrictions that constitute private deed restrictions; (2) courts consider these to be a form of private contract among homeowners, the declarants, and other parties that are burdened or benefitted by them; and (3) the County is not a party to the DOC and has no authority to enforce its covenants and restrictions that do not implicate County law. (Id. at 32). The letter was copied to attorneys for the Golf Course Owner and Declarant and directed the Declarant to amend the DOC to remove provisions that allow the Golf Course Owner to collect an assessment for maintenance of the common facilities, adjacent open space and golf course assessment areas as defined in the DOC. (Id. at 32-34).

         A deed dated January 20, 2016 conveys the property from Rosemary Angelo to Rosemary Angelo and Plaintiff as co-trustees under a revocable trust agreement date November 13, 2015. (D.I. 13-2at 5-7). The January 20, 2016 deed is subject to the DOC and the Maintenance Declaration. (Id. at 6) A New Castle County Recorder of Deeds data sheet indicates that on April 11, 2017, Plaintiff and Rosemary Angelo recorded a deed to Ronald Angelo, Sr., Trustee, Rosemary Angelo, Trustee, and the Ronald Angelo, Sr. and Rosemary Angelo Revocable Trust. (D.I 1-1 at 54.). The Court was not provided the deed, and it is unclear if it is subject to the DOC and the Maintenance Declaration or if the deed recorded on April 11, 2017 is the same deed that was executed on January 20, 2016.

         Plaintiff alleges that CLT, as his title insurance company, is liable "for all recorded documents including documents excluded except for documents declared void." (Id. at 6). Plaintiff alleges that NVR, as a mortgage company, had a fiduciary responsibility to insure the deed it transferred to the buyer (;'.e., Rosemary Angelo) was without error and in compliance with county, state, and federal law. (Id. at 8). Plaintiff alleges that at settlement, Defendants did not inform him of all the violations of the recorded documents and did not advise him of the excluded documents from coverage or of invalid record plans and recorded instruments in his title insurance policy. (Id. at 5). Plaintiff alleges "with the current violation of recordation, [his] property cannot be sold with full disclosure." (Id. at 6). Plaintiff seeks a full refund of the purchase price plus improvements and expenses to move or a declaration that the recorded document is void and for NVR or CLT to return the monies collected at settlement by NVR charged as a golf course fee, plus interest. (Id. at 6).

         The Complaint asserts federal jurisdiction and diversity jurisdiction. As noted below, it does not appear that there is any valid federal claim. The prayer for relief seeks a refund of the property's purchase price - $495, 000- or $5, 000 plus interest. (D.I. 1 at 6). If the request for relief does not meet the diversity threshold, an issue that I do not now decide, then there is no jurisdictional basis for this matter being in federal court.

         The Complaint raises: (1) two counts of New Castle County code violations; one for land use and one for the recorder of deeds; (2) two violations of state law; one for violating Title 9 of the Delaware Code and one for bank fraud; and (3) two violations of federal law; one for recordation and one for bank fraud. (Id. at 5).

         New Castle County Code.

         The Complaint appears to allege violations of Chapter 40 of the New Castle County Code, Unified Development Code ("UDC"), §§ 40.30.510[2] and 40.31.130.[3] The Complaint alleges that the Maintenance Declaration states that any changes or additions must be approved by the New Castle County Council; that the DOC sought to expand the original maintenance declaration without approval as required by USD § 40.31.130.G.; that the DOC does not conform to the model declaration; as a result, any maintenance obligations resulting from its execution should be considered null and void and the homeowners should not be required to pay any open space maintenance fees resulting from its execution; and the DOC is recorded illegally and is void. (Id. at 12-13).

         Delaware Law.

         The Complaint alleges the DOC is not "duly executed or recorded" on property located at 611 Southerness Drive, Townsend, Delaware. (Id. at 4). It is alleged that the DOC does not meet 9 Del. C. § 9605, because the document does not have "prepared by" and "return address" on the first page, which was done to defraud the residents, and the preparer knew the DOC would not pass County Council which is why it was not submitted through proper channels. (Id. at 9-10). The Complaint alleges that because the DOC did not conform to the rules of recordation it should not have been accepted by the Recorder of Deeds. (Id. at 10-11). The Complaint alleges that as long as the DOC is attached to the deed, the property cannot be sold and no loans can be made with the property as collateral. (Id. at 11). Plaintiff alleges that paragraph 8.7 of the DOC states that the $5, 000 golf course fee is a fee charged to the builder and not the buyer and fraud was perpetrated by the builder when the fee was paid by the buyer and collected at settlement.[4] (Id. at 20).

         Federal Law.

         The Complaint alleges that if the property is insured by a United States government agency then the government is the victim of fraud in violation of 18 U.S.C. § 1021 and the bank was defrauded in violation of 18 U.S.C. § 1344. (Id. at 11). The Complaint alleges that the bank was defrauded when it loaned money ...

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