CitiMortgage, Inc. v. Swift.

• Court: Superior Court of Delaware
• Decided: April 2, 2015
• Docket: 14L-07-015
• Status: Published

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE JUDGE 1 THE CIRCLE, SUITE 2 GEORGETOWN, DE 19947 TELEPHONE (302) 856-5264

April 2, 2015

Daniel T. Conway, Esquire Carolyn Swift a/k/a Carolyn L. Swift Atlantic Law Group, LLC 2021 Ashwood Run 512 East Market Street The Villages, FL 32162 Georgetown,DE 19947 Carolyn Swift a/k/a Carolyn L. Swift 112 Red Cedar Drive Milton, DE 19968

RE: CitiMortgage, Inc. v. Carolyn Swift a/k/a Carolyn L. Swift C.A. No.: S14L-07-015 RFS

Dear Counsel:

The Motion for Summary Judgment filed by Plaintiff is denied. Material

facts are disputed, and judgment may not be entered as a matter of law.

Plaintiff seeks entry of an order granting summary judgment; however,

material factual matters in dispute are apparent upon review of the record.

“[S]ummary judgment may not be granted when the record indicates a material

1 fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in

order to clarify the application of law to the circumstances.” 1 When considering

the facts in the light most favorable to the non-moving party, 2 there are details set

forth in the answer, accompanying affidavits, and documents illustrating genuine

issues of material fact regarding an alleged deed in lieu of foreclosure. 3

Plaintiff contends Defendant’s bankruptcy proceedings may not protect

Plaintiff from an in rem action 4 such as the present scire facias action. 5 Even if

this is correct, questions may arise concerning whether a deed in lieu of foreclosure

was accepted by Plaintiff and whether adequate notice was provided regarding

Plaintiff’s alleged rejection of a deed in lieu of foreclosure. These contested issues

present genuine factual disputes and prevent this Court from entering an order

granting summary judgment.6

1 Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del. Super. 1995). 2 Pullman, Inc. v. Phoenix Steel Corp., 304 A.2d 334, 335 (Del. Super. 1973) (discussing the standard of review at the summary judgment stage). 3 Including a letter dated July 2, 2012 referencing a deed in lieu of foreclosure. See, Def.’s Aff. Ex. A, No. 1(b). 4 See e.g., In re Mandehzadeh, 2014 WL 423609 (Bankr. E.D. Va. Feb. 4, 2014) (explaining “[a] creditor's in personam and in rem rights are treated separately” because “[t]he in personam right is eliminated by a discharge in bankruptcy” but “[a] discharge does not affect the in rem right” which can "pass[] through bankruptcy unaffected by a discharge” (citing Branigan v. Davis (In re Davis), 716 F.3d 331, 338 (4th Cir.2013)). 5 See, Quadrant Structured Products Co., Ltd. v. Vertin, 106 A.3d 992, 1009 (Del.) certified question accepted, 980 N.Y.S.2d 379 (N.Y. 2013) and certified question answered, 992 N.Y.S.2d 687 (N.Y. 2014) (explaining “[i]f the borrower defaults, the bank can proceed in rem by foreclosing on the mortgage, sue the borrower in personam on the promissory note, or both”). 6 Super. Ct. Civ. R. 56(c). 2 At this juncture, further inquiry is required and this case may not be

summarily resolved. For the foregoing reasons, Plaintiff’s Motion for Summary

Judgment is DENIED.

IT IS SO ORDERED

Very Truly Yours,

/s/ Richard F. Stokes

______________________________

Hon. Richard F. Stokes

cc: Prothonotary