IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
AJAX MORTGAGE LOAN TRUST ) 2019-G, MORTGAGE BACKED ) SECURITIES SERIES 2019-G, BY ) U.S. BANK NATIONAL ASSOCIATION ) AS INDENTURE TRUSTEE, ) ) Plaintiff, ) ) v. ) C.A. No. N22L-04-063 SPL ) DOUGLAS R. COUDEN and ) MEGAN L. COUDEN, ) ) Defendants. )
Submitted: September 26, 2023 Decided: November 30, 2023
Order on Plaintiff’s Motion for Summary Judgment GRANTED
ORDER
This 30th day of November 2023, upon consideration of Plaintiff Ajax
Mortgage Loan Trust’s (“Ajax”) Motion for Summary Judgment1 and Defendants
Douglas R. Couden’s and Megan L. Couden’s (“the Coudens”) responses thereto,2
it appears to the Court that:
1 D.I. 11. 2 D.I. 19.
1 1. On June 28, 2007, the Coudens executed a mortgage on the property
known as 118 Bartley Drive, Newark, Delaware 19702 (Tax Parcel No. 11-016.40-
018).3 The mortgage and note, originally held by Chase Bank, following a series of
transfers are, as of May 14, 2020, held by Ajax.4
2. The Coudens negotiated modifications to the loan agreement to include
“unpaid interest [in] the principal balance of the loan and [to set] a new payment on
the combined amounts.”5 The Coudens defaulted on their obligation by failing to
pay monthly installments when due.
3. On April 26, 2022, Ajax filed a scire facias sur mortgage complaint
against the Coudens seeking judgment on the mortgage.6
4. On May 23, 2022, the Coudens answered Ajax’s complaint asserting
that they “have no knowledge of Petitioner Ajax Mortgage Loan Trust.”7
5. Mortgage Mediation failed.8 In the September 11, 2022, Final
Mediation Record, the mediator noted that the Coudens failed to submit materials in
accordance with the mediation schedule and, as a result, the Coudens “will not stay
3 Compl. (D.I. 1) at ¶ 5. 4 Id.; Ex. F to Compl.; Amend. Exh. B to Mot. Summ. J. (D.I. 24). 5 Compl. at ¶ 8. 6 Compl. at 3. 7 D.I. 7. 8 Final Mediation Record (D.I. 10).
2 in home because foreclosure will proceed.”9
6. On September 21, 2022, Ajax moved for summary judgment asserting
that “[t]here is no triable issue as to any material fact in this case because there is
ample evidence to show that a debt secured by a mortgage existed between [Ajax]
and [the Coudens] and, by not performing, [the Coudens are] in breach of the terms
of the mortgage.”10 Further, Ajax contends that the Coudens “have not demonstrated
any good-faith dispute of the allegations set forth in the complaint[, and] . . . have
not pled any of the allowable defenses to a scire facias action[,] and [have] not
offered any allowable justification for the failure to pay the unpaid balance owed to
[Ajax].”11
7. The Court directed the Coudens to respond to Ajax’s Motion for
Summary Judgment by November 4, 2022.12 At the Couden’s request, the Court
extended their response deadline to December 19, 2022.13 And, when the Coudens’
requested more time to retain counsel, the Court extended their deadline to respond
to January 31, 2023.14 The Coudens chose not to retain counsel and, on February 1,
9 Id. 10 Mot. Summ. J. (D.I. 11) at ¶ 17. 11 Id. at ¶ 18. 12 D.I. 12. 13 D.I. 15. 14 D.I. 18.
3 2023, the Court docketed the Couden’s January 31, 2023 response to the Motion for
Summary Judgment.15
8. In their response, the Coudens argued that they were unaware of Ajax’s
acquisition of their mortgage and note.16 Further, they asserted that their mortgage
“disappeared” and that they “were advised it had been paid off.”17 Ultimately, they
posited that they “never heard or had knowledge of [Ajax] or their claims.”18
9. On August 11, 2023, the Court heard argument on the Motion for
Summary Judgment.19 At the conclusion of the hearing, the Court invited the
Coudens to submit any additional documentation by September 15, 2023, and
permitted Ajax to respond by September 29, 2023.20
10. The Coudens submitted a supplemental letter and documents in
opposition to Ajax’s Motion for Summary Judgment.21 The Coudens acknowledge
that “clarification has been obtained,” they recognize their financial obligation, and
they now seek to negotiate with Ajax.22 At no time during these proceedings have
15 D.I. 19. 16 Resp. Mot. Summ. J. (D.I. 19) at ¶¶ 2, 3. 17 Id. at ¶ 5. 18 Id. at ¶ 10. 19 D.I. 25. 20 Id. 21 D.I. 26. 22 D.I. 26 at 2.
4 the Coundens asserted that they made any payments on the mortgage; their
nonpayment is not in dispute.
11. Ajax replied, arguing that “[j]udgment should be awarded in [Ajax’s]
favor given the evidence shown and the lack of evidence provided by [the Coudens]
as there is no material issue of fact left in dispute.”23 Ajax also noted that the
Coudens are “certainly free to pursue loss mitigation options with [Ajax], and an
application has been provided to them to begin that process.”24
12. Under Superior Court Civil Rule 56, summary judgment will be granted
where “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 a judgment as a matter of law.”25
The moving party bears the initial burden of demonstrating that the undisputed facts
support claims or defenses.26 If the motion is properly supported, then the burden
shifts to the non-moving party to demonstrate that there are material issues of fact
for the resolution by the ultimate fact-finder.27 Ajax has satisfied its burden and is
23 D.I. 27 at 3. 24 Id. 25 Super. Ct. Civ. R. 56(c). 26 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole v. Lowengrub, 180 A.2d 467 (Del. Super. Ct. 1962)). 27 See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
5 entitled to summary judgment as a matter of law.
13. Title 10, Section 5061 of the Delaware Code provides:
[U]pon breach of the condition of a mortgage of real estate by nonpayment of the mortgage money or nonperformance of the condition stipulated in such mortgage at the time and in the manner therein provided the mortgagee, the mortgagee’s heirs, executors, administrators, successors or assigns may, at any time after the last day whereon the mortgage money ought to have been paid or other conditions performed, sue out of the Superior Court of the county wherein the mortgage premises are situated a writ of scire facias upon such mortgage directed to the sheriff of the county commanding the sheriff to make known to the mortgagor, and those persons described in subsection (b) of this section and such mortgagor's heirs, executors, administrators or successors that the mortgagor or they appear before the Court to show cause, if there is any, why the mortgaged premises ought not to be seized and taken in execution for payment of the mortgage money with interest or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the nonperformance of the conditions.28
14. The Coudens offer no defense to Ajax’s pursuit of the remedies
available under the statute. Rather, they acknowledge the existence of their
obligation and concede nonpayment.
15. The Coudens have chosen to represent themselves in this proceeding.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
AJAX MORTGAGE LOAN TRUST ) 2019-G, MORTGAGE BACKED ) SECURITIES SERIES 2019-G, BY ) U.S. BANK NATIONAL ASSOCIATION ) AS INDENTURE TRUSTEE, ) ) Plaintiff, ) ) v. ) C.A. No. N22L-04-063 SPL ) DOUGLAS R. COUDEN and ) MEGAN L. COUDEN, ) ) Defendants. )
Submitted: September 26, 2023 Decided: November 30, 2023
Order on Plaintiff’s Motion for Summary Judgment GRANTED
ORDER
This 30th day of November 2023, upon consideration of Plaintiff Ajax
Mortgage Loan Trust’s (“Ajax”) Motion for Summary Judgment1 and Defendants
Douglas R. Couden’s and Megan L. Couden’s (“the Coudens”) responses thereto,2
it appears to the Court that:
1 D.I. 11. 2 D.I. 19.
1 1. On June 28, 2007, the Coudens executed a mortgage on the property
known as 118 Bartley Drive, Newark, Delaware 19702 (Tax Parcel No. 11-016.40-
018).3 The mortgage and note, originally held by Chase Bank, following a series of
transfers are, as of May 14, 2020, held by Ajax.4
2. The Coudens negotiated modifications to the loan agreement to include
“unpaid interest [in] the principal balance of the loan and [to set] a new payment on
the combined amounts.”5 The Coudens defaulted on their obligation by failing to
pay monthly installments when due.
3. On April 26, 2022, Ajax filed a scire facias sur mortgage complaint
against the Coudens seeking judgment on the mortgage.6
4. On May 23, 2022, the Coudens answered Ajax’s complaint asserting
that they “have no knowledge of Petitioner Ajax Mortgage Loan Trust.”7
5. Mortgage Mediation failed.8 In the September 11, 2022, Final
Mediation Record, the mediator noted that the Coudens failed to submit materials in
accordance with the mediation schedule and, as a result, the Coudens “will not stay
3 Compl. (D.I. 1) at ¶ 5. 4 Id.; Ex. F to Compl.; Amend. Exh. B to Mot. Summ. J. (D.I. 24). 5 Compl. at ¶ 8. 6 Compl. at 3. 7 D.I. 7. 8 Final Mediation Record (D.I. 10).
2 in home because foreclosure will proceed.”9
6. On September 21, 2022, Ajax moved for summary judgment asserting
that “[t]here is no triable issue as to any material fact in this case because there is
ample evidence to show that a debt secured by a mortgage existed between [Ajax]
and [the Coudens] and, by not performing, [the Coudens are] in breach of the terms
of the mortgage.”10 Further, Ajax contends that the Coudens “have not demonstrated
any good-faith dispute of the allegations set forth in the complaint[, and] . . . have
not pled any of the allowable defenses to a scire facias action[,] and [have] not
offered any allowable justification for the failure to pay the unpaid balance owed to
[Ajax].”11
7. The Court directed the Coudens to respond to Ajax’s Motion for
Summary Judgment by November 4, 2022.12 At the Couden’s request, the Court
extended their response deadline to December 19, 2022.13 And, when the Coudens’
requested more time to retain counsel, the Court extended their deadline to respond
to January 31, 2023.14 The Coudens chose not to retain counsel and, on February 1,
9 Id. 10 Mot. Summ. J. (D.I. 11) at ¶ 17. 11 Id. at ¶ 18. 12 D.I. 12. 13 D.I. 15. 14 D.I. 18.
3 2023, the Court docketed the Couden’s January 31, 2023 response to the Motion for
Summary Judgment.15
8. In their response, the Coudens argued that they were unaware of Ajax’s
acquisition of their mortgage and note.16 Further, they asserted that their mortgage
“disappeared” and that they “were advised it had been paid off.”17 Ultimately, they
posited that they “never heard or had knowledge of [Ajax] or their claims.”18
9. On August 11, 2023, the Court heard argument on the Motion for
Summary Judgment.19 At the conclusion of the hearing, the Court invited the
Coudens to submit any additional documentation by September 15, 2023, and
permitted Ajax to respond by September 29, 2023.20
10. The Coudens submitted a supplemental letter and documents in
opposition to Ajax’s Motion for Summary Judgment.21 The Coudens acknowledge
that “clarification has been obtained,” they recognize their financial obligation, and
they now seek to negotiate with Ajax.22 At no time during these proceedings have
15 D.I. 19. 16 Resp. Mot. Summ. J. (D.I. 19) at ¶¶ 2, 3. 17 Id. at ¶ 5. 18 Id. at ¶ 10. 19 D.I. 25. 20 Id. 21 D.I. 26. 22 D.I. 26 at 2.
4 the Coundens asserted that they made any payments on the mortgage; their
nonpayment is not in dispute.
11. Ajax replied, arguing that “[j]udgment should be awarded in [Ajax’s]
favor given the evidence shown and the lack of evidence provided by [the Coudens]
as there is no material issue of fact left in dispute.”23 Ajax also noted that the
Coudens are “certainly free to pursue loss mitigation options with [Ajax], and an
application has been provided to them to begin that process.”24
12. Under Superior Court Civil Rule 56, summary judgment will be granted
where “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 a judgment as a matter of law.”25
The moving party bears the initial burden of demonstrating that the undisputed facts
support claims or defenses.26 If the motion is properly supported, then the burden
shifts to the non-moving party to demonstrate that there are material issues of fact
for the resolution by the ultimate fact-finder.27 Ajax has satisfied its burden and is
23 D.I. 27 at 3. 24 Id. 25 Super. Ct. Civ. R. 56(c). 26 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole v. Lowengrub, 180 A.2d 467 (Del. Super. Ct. 1962)). 27 See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
5 entitled to summary judgment as a matter of law.
13. Title 10, Section 5061 of the Delaware Code provides:
[U]pon breach of the condition of a mortgage of real estate by nonpayment of the mortgage money or nonperformance of the condition stipulated in such mortgage at the time and in the manner therein provided the mortgagee, the mortgagee’s heirs, executors, administrators, successors or assigns may, at any time after the last day whereon the mortgage money ought to have been paid or other conditions performed, sue out of the Superior Court of the county wherein the mortgage premises are situated a writ of scire facias upon such mortgage directed to the sheriff of the county commanding the sheriff to make known to the mortgagor, and those persons described in subsection (b) of this section and such mortgagor's heirs, executors, administrators or successors that the mortgagor or they appear before the Court to show cause, if there is any, why the mortgaged premises ought not to be seized and taken in execution for payment of the mortgage money with interest or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the nonperformance of the conditions.28
14. The Coudens offer no defense to Ajax’s pursuit of the remedies
available under the statute. Rather, they acknowledge the existence of their
obligation and concede nonpayment.
15. The Coudens have chosen to represent themselves in this proceeding.
The Court is mindful of the challenges faced by self-represented litigants, but it
cannot “sacrifice the orderly and efficient administration of justice to accommodate
28 10 Del. C. § 5061(a).
6 the unrepresented plaintiff”29 or impair “the substantive rights of those parties
involved in the case at bar.”30 The Court granted the Coudens’ requests for more
time to respond Ajax’s motion, additional time to seek counsel, and additional time
to supplement their answer. When afforded the opportunity to engage in mortgage
mediation, the Coudens nominally participated and, importantly, failed to provide
documents to assist in that process. Not until pressed by the Court during the August
2023 hearing on Ajax’s motion did the Coudens independently investigate their
obligation and determine that, in fact, their obligation remained. The Court has
endeavored to afford the Coudens every opportunity to investigate and defend this
action. No defense is offered, and no material fact is in dispute.
For the foregoing reasons, there exists no genuine issue of material fact and
Ajax’s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
____________________________ Sean P. Lugg, Judge
29 Damiani v. Gill, 2015 WL 4351507, at *1 (Del. July 15, 2015) (quoting Draper, 767 A.2d at 799); see also Sloan v. Segal, 2008 WL 81513, at *7 (Del. Ch. Jan. 3, 2008) (cleaned up) (“[S]elf representation is not a blank check for defect.”). 30 Alston v. State, 2002 WL 184247, at *1 (Del. Super. Ct. Jan. 28, 2002).