Bank of New York Mellon v. Robinson

• Court: Superior Court of Delaware
• Decided: February 5, 2019
• Docket: N17L-05-071 ALR
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE BANK OF NEW YORK MELLON, ) ) Plaintiff, ) ) v. ) C.A. No. N17L-05-071 ALR ) FRANK ROBINSON AND ) VIOLA ROBINSON, ) ) Defendants. )

Upon Consideration of Plaintiff’s Motion for Default Judgment GRANTED

ORDER

Upon consideration of the written submissions of the parties and arguments

presented at the hearing on Tuesday, February 5, 2019; the Delaware Superior Court

Rules of Civil Procedure; statutory and decisional law; and the entire record in this

case, the Court hereby finds as follows:

1. On May 17, 2017, Plaintiff The Bank of New York Mellon (“Plaintiff”)

filed its In Rem Scire Facias mortgage complaint (“Complaint”) against Defendants

Frank Robinson and Viola Robinson (“Defendants”) seeking foreclosure of

Plaintiff’s interest in the property commonly known as 1705 West 3 rd Street,

Wilmington, Delaware 19805, under the mortgage referenced in the Complaint. The

Complaint included a certified copy of the mortgage and demanded that Defendants

answer the allegations of the Complaint by affidavit pursuant to 10 Del. C. § 3901. 2. Plaintiff now moves for Default Judgment against both Defendants for

failure to comply with the requirements of 10 Del. C. § 3901.

3. At oral argument, Defendant Frank Robinson raised issues previously

decided by this Court in Frank Lee Robinson v. OCWEN Loan Servicing LLC and

Litton Loan Servicing, LLC.1 This request for reconsideration is declined.

4. The Court is satisfied that Plaintiff is entitled to the relief requested.

The mortgage has been in default since November 2013. With respect to the

modification efforts claimed, the Court finds that there have been no valid

modifications of the mortgage. Defendant Frank Robinson has not answered the

allegations of the Complaint by affidavit of defense as required by statute.2

Moreover, the Court finds that it would be futile to exercise its discretion to decline

entering a default judgment because Defendant Frank Robinson has not set forth any

of the limited defenses to In Rem mortgage foreclosure actions recognized by

Delaware Law.3

5. With respect to Frank Robinson, a default judgment shall enter pursuant

to 10 Del. C. § 3901.

1 C.A. No. N14C-05-058 (Del. Super. Dec. 29, 2014) (ORDER). 2 10 Del. C. § 3901(c). 3 A mortgagor’s responsive pleadings in a scire facias mortgage action are restricted to those arising out of the original mortgage transaction, payment or satisfaction, or the mortgagor may plead in avoidance of the mortgage. First Fed. Sav. & Loan Ass’n of Norwalk v. Christiana Falls, 1986 WL 9916, at *1 (Del. Super. Sept. 9, 1986) aff’d 1986 WL 18356 (Del. Dec. 30, 1986).

2 6. Defendant Viola Robinson has not appeared in this action and therefore

default judgment should also be entered against Viola Robinson.

NOW, THEREFORE, this 5th day of February, 2019, for the reasons set

forth above, the Plaintiff’s Motion for Default Judgment is granted and

judgment In Rem shall enter in favor of Plaintiff against Defendants Frank

Robinson and Viola Robinson as follows:

Principal Balance $82,973.26 Interest 14,347.42 Late Charges* 520.18 Escrow Balance 3,504.70 Fees and Expenses 1,617.00 Suspense Balance (494.47) TOTAL $102,468.09

* Plus interest accruing from January 14, 2019, at the per diem rate of $9.79, and late charges and advances to the date of confirmation.

IT IS SO ORDERED.

Andrea L. Rocanelli ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____

The Honorable Andrea L. Rocanelli

cc: Frank Robinson Viola Robinson