Purnell v. LSF9 Master Participation Trust and Caliber Home Loans

• Court: Supreme Court of Delaware
• Decided: November 16, 2021
• Docket: 67, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOHN R. PURNELL III, (AS § GUARDIAN AD LITEM FOR) § No. 67, 2021 BRENDA A. PURNELL, § § Court Below—Superior Court Plaintiff Below, § of the State of Delaware Appellant, § § C.A. No. N20C-09-167 v. § § LSF9 MASTER PARTICIPATION § TRUST AND CALIBER HOME § LOANS INC., § § Defendants Below, § Appellees. §

Submitted: September 24, 2021 Decided: November 16, 2021

Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices.

ORDER

Upon consideration of the parties’ briefs and record below, it appears to the

Court that:

(1) The plaintiff below-appellant, John R. Purnell, III, as guardian ad litem

for Brenda A. Purnell, filed this appeal from a Superior Court order granting the

motion for judgment on the pleadings filed by defendants below-appellees, LSF9

Master Participation Trust (“LSF9”)1 and Caliber Home Loans, Inc. (“Caliber”). For

1 The appellees identify this entity as U.S. Bank Trust, N.A. as trustee for LSF9 Master Participation Trust. the reasons set forth below, we conclude that the Superior Court did not err in

granting the motion for judgment on the pleadings. Accordingly, we affirm the

Superior Court’s judgment.

(2) Brenda Purnell and her husband had a mortgage with LSF9 for a

property located in New Castle, Delaware (“the Property”).2 Caliber serviced the

mortgage loan for LSF9. On June 13, 2016, LSF9 filed the Mortgage Action against

Brenda Purnell. During that proceeding, the Superior Court appointed Purnell,

Brenda Purnell’s son, to act as her guardian ad litem under Superior Court Civil Rule

17(c).

(3) Purnell acted as landlord for the Property. He made repairs and

additions to the Property. In April 2018, Purnell rented the Property to a tenant, who

lived on the Property with his girlfriend. The Purnells did not reside on the Property.

(4) On April 12, 2018, the Superior Court granted LSF9’s second motion

for summary judgment in the Mortgage Action. On July 9, 2018, the Superior Court

granted Purnell’s motion to stay any sheriff’s sale of the Property. In April 2019,

the tenant and his girlfriend were evicted from the Property. After the tenant’s arrest

in May 2019, the girlfriend continued to reside on the Property.

2 The facts are drawn from the pleadings, documents incorporated into and referred to in the pleadings, and the docket in the in rem scire facias mortgage foreclosure action LSF9 filed against Brenda Purnell in the Superior Court, C.A. No. N16L-06-051 (“the Mortgage Action”) that Purnell referred to throughout his complaint.

2 (5) On June 18, 2019, the Superior Court granted LSF9’s motion to lift the

stay of execution. On July 11, 2019, a writ of alias levari facias issued. On

September 6, 2019, LSF9 filed the proof of mailing required by Superior Court Civil

Rule 69(g). On September 10, 2019, LSF9 purchased the Property at a sheriff’s sale.

Purnell did not object to the sale or file a motion to set aside the sale. He was unable

to remove personal property and fixtures from the Property because he was locked

out.

(6) On September 17, 2020, Purnell filed a complaint against LFS9 and

Caliber for leasehold interest, unlawful trespass, unlawful ouster and ejectment, real

estate fixtures, and mortgage fraud. After answering the complaint, the defendants

filed a motion for judgment on the pleadings. Purnell did not file a response but

presented his opposition during the hearing on the motion. The Superior Court

granted the motion for judgment on the pleadings. This appeal followed.

(7) We review the trial court’s grant of a motion for judgment on the

pleadings de novo.3 Purnell argues, as he did below, that the defendants failed to

obtain summary possession of the Property under Chapter 57 of Title 25 of the

Delaware Code after the sheriff’s sale and that therefore they unlawfully trespassed

on the Property and unlawfully ousted the Purnells from the Property. Purnell has

3 Chicago Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166 A.3d 912, 925 (Del. 2017). 3 waived appellate review of the other claims that he raised below, but did not argue,

in his opening brief.4

(8) Having carefully considered the parties’ arguments, we conclude that

the Superior Court did not err in granting the defendants’ motion for judgment on

the pleadings on the trespass and ouster claims. LSF9 acquired equitable title in the

Property at the sheriff’s sale and perfected legal title when the sheriff executed and

delivered the deed.5 There is no basis for Purnell’s contention that the defendants

were required to obtain summary possession of the Property from them after the

sheriff’s sale. An action for summary possession under Chapter 57 may be

maintained when a tenant takes or fails to take certain actions.6 Chapter 57 did not

apply here because the Purnells were not in possession of the Property or tenants of

the Property at the time of the sheriff’s sale. The defendants thus did not unlawfully

trespass on the Property or unlawfully oust the Purnells from the Property after the

sheriff’s sale.

4 Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of the opening brief shall be deemed waived and will not be considered by the Court on appeal.”); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (recognizing that the failure to raise a legal issue in an opening brief generally constitutes a waiver). 5 In re Spencer, 115 B.R. 471, 478-79 (Bankr. D. Del. 1990); Victor B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware, § 1148 (1906). 6 25 Del. C. § 5702 (providing that summary possession action can be maintained when, among other things, the tenant unlawfully continues to possess the rental property, wrongfully fails to pay the rent, or is unlawfully ousted).

4 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor Justice