The Bank of New York Mellon v. Shrewsbury

• Court: Superior Court of Delaware
• Decided: May 18, 2016
• Docket: N15L-03-108 CLS
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE BANK OF NEW YORK ) MELLON, f/k/a THE BANK OF ) NEW YORK, as Trustee for the ) Certificateholders of CWMBS, Inc., ) CHL Mortgage Pass-Through Trust ) 2007-9, Mortgage Pass-Through ) Certificates, Series 2007-9, ) ) Plaintiff, ) ) v. ) C.A. No. N15L-03-108 CLS ) J. M. SHREWSBURY, a/k/a ) J. MICHAEL SHREWSBURY, and ) KATHY SHREWSBURY, ) ) Defendants. )

Submitted: March 1, 2016 Decided: May 18, 2016

On Defendants’ Motion for Reargument. DENIED.

ORDER

Melanie J. Thompson, Esquire, Atlantic Law Group, L.L.C., Wilmington, Delaware, Attorney for Plaintiff.

Cynthia L. Carroll, Esquire, Cynthia L. Carroll, P.A., Newark, Delaware, Attorney for Defendants.

SCOTT, J. On this 18th day of May, 2016, and upon Defendants’, J. M.

Shrewsbury, also known as J. Michael Shrewsbury, and Kathy Shrewsbury

(collectively, “Defendants”), Motion for Reargument, it appears to the Court

as follows:

1. On March 20, 2015, Plaintiff, The Bank of New York Mellon,

formerly known as The Bank of New York (“Plaintiff”), as Trustee

for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-

Through Trust 2007-9, Mortgage Pass-Through Certificates, Series

2007-9, instituted a scire facias sur mortgage action against

Defendants, arising out of Defendants’ alleged breach by non-

payment of monthly installments due under a mortgage executed by

Defendants and pertaining to certain real property located in

Middletown, Delaware.

2. On September 18, 2015, Plaintiff moved for summary

judgment, contending that Defendants failed to plead any allowable

defense(s) in their Answer and, thus, there is no genuine issue of

material fact and Plaintiff is entitled to judgment as a matter of law.

3. On November 16, 2015, Defendants responded to Plaintiff’s

motion for summary judgment, arguing that Plaintiff lacks standing

for failure to prove that it is the owner and/or holder of the promissory

2 note, which, Defendants contend, is required in order to enforce the

mortgage under Delaware law.

4. On February 17, 2016, this Court issued an order granting

Plaintiff’s motion based on its finding that, because the assignment of

the mortgagee’s interest to Plaintiff was valid, under Delaware law

Plaintiff has standing to pursue foreclosure of Defendants’ mortgage.

The Court further found no genuine issue of fact owing to

Defendants’ having failed to satisfy their burden of rebutting the

presumption of authenticity of the mortgage, which they alleged.

5. On February 24, 2016, Defendants timely filed their Motion for

Reargument under Superior Court Civil Rule 59(e), contending that

the Court misapprehended the law and facts of this case such as would

affect the outcome of the decision. Specifically, Defendants contend

that the Court, in its order, misapprehended Defendants’ argument as

challenging the validity or enforceability of the mortgage

assignments, rather than challenging whether the note was validly

assigned. In support of this contention, Defendants explicitly refer to

the argument previously made in their response to Plaintiffs’ summary

judgment motion—“that the mortgagee must also be the noteholder,

3 pursuant to the note and mortgage contract”1—this time, the Court

notes, without citation to non-binding, and otherwise irrelevant, case

law from other states and appellate district courts of appeal, but also,

and more importantly, without reference to any relevant Delaware

case law or other binding precedent on this issue.

6. On March 1, 2016, Plaintiff responded to Defendants’ Motion,

contending that Defendants’ argument is misplaced, because the

mortgagee’s right to foreclose under Delaware law emanates from the

mortgage, not the note, and, thus, Plaintiff, as legal holder of the

mortgage, has standing to bring the instant action. In support of its

argument, Plaintiff cites to numerous Delaware cases standing for the

legal principle that, in Delaware, a scire facias sur mortgage action is

based upon the mortgage, is strictly an in rem action, and has limited

allowable defenses, i.e., only payment, satisfaction, absence of seal, or

a plea in avoidance of the deed, and, thus, such an action is separate

and apart from an action to enforce the note, which it does not seek.

7. On a motion for reargument under Superior Court Civil Rule

59(e), the only issue is whether the Court overlooked something that

1 Defs.’ Mot. Rearg. ¶ 10.

4 would have changed the outcome of the underlying decision.2 Thus,

the motion will be granted only if “the Court has overlooked a

controlling precedent or legal principles, or the Court has

misapprehended the law or facts such as would have changed the

outcome of the underlying decision.”3 A motion for reargument is not

an opportunity for a party to rehash the arguments already decided by

the Court or to present new arguments not previously raised.4 A party

seeking to have the Court reconsider the earlier ruling must

“demonstrate newly discovered evidence, a change in the law, or

manifest injustice.”5

8. Defendants fail to demonstrate that the Court has overlooked a

controlling precedent or legal principles or misapprehended the law or

facts as such would affect the outcome of the decision based on their

unsupported, repetitive, and similarly unavailing argument that

Delaware law requires a mortgagee hold both the note and the

mortgage in order to bring a mortgage foreclosure action under 10

Del. C. § 5061(a). As such, Defendants’ Motion merely rehashes the

arguments already decided by the Court in its decision pertaining to 2 Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000) aff'd, 763 A.2d 90 (Del. 2000). 3 Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006). 4 .Id. 5 Brenner, 2000 WL 972649, at *1.

5 summary judgment, as evidenced by Defendants’ explicit reference to

and repetition of the same arguments made in their response to

Plaintiff’s motion for summary judgment, which is not enough to

support a motion for reargument under Rule 59(e).6

9. Moreover, Defendants have offered no change in case law that

would require the Court to reassess its decision to deny Plaintiff’s

motion for summary judgment. Accordingly, Defendants have failed

to satisfy the standard under Rule 59(e) for the Court to grant their

Motion for Reargument.

For the foregoing reasons, Defendants’ Motion for Reargument is

DENIED.

IT IS SO ORDERED. /s/Calvin L. Scott, Jr. ________________________ Judge Calvin L. Scott, Jr.

6 See Brenner, 2000 WL 972649, at *1.