Tolliver v. US Bank National Association

• Court: Supreme Court of Delaware
• Decided: April 29, 2020
• Docket: 471, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

M. DENISE TOLLIVER, § § Defendant Below, § No. 471, 2019 Appellant, § § v. § Court Below: Superior Court § of the State of Delaware U.S. BANK NATIONAL § ASSOCIATION AS LEGAL § C.A. No. N18L-07-054 TITLE TRUSTEE FOR TRUMAN § 2016 SC6 TITLE TRUST, § § Plaintiff Below, § Appellee. §

Submitted: March 13, 2020 Decided: April 29, 2020

Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES, Justices.

ORDER

After consideration of the parties’ briefs and the record in this case, it appears

to the Court that:

(1) The appellant, M. Denise Tolliver, filed this appeal from an order of the

Superior Court granting summary judgment to the appellee, U.S. Bank National

Association as Legal Title Trustee for Truman 2016 SC6 Title Trust (“U.S. Bank”).

After careful consideration of the parties submissions and the record on appeal, we

affirm the Superior Court’s judgment for the reasons stated below. (2) In January 2008, Tolliver executed a promissory note (“the Note”) for

a loan from Wachovia Mortgage, FSB. The Note was secured by a mortgage (“the

Mortgage”) on a property in Wilmington, Delaware. The Mortgage provided that if

Tolliver failed to make a payment in full, Wachovia Mortgage could demand

immediate payment of all sums secured and take any action to sell the property.1

(3) By late 2017, Tolliver had fallen behind on the mortgage payments. In

July 2018, Wells Fargo Bank, N.A. (formerly known as Wachovia Mortgage, FSB)

filed a mortgage foreclosure action against Tolliver. Tolliver filed a motion to

dismiss, which Wells Fargo opposed. In November 2018, Wells Fargo assigned its

interest in the Mortgage to U.S. Bank National Association as Legal Title Trustee

for Truman 2016 SC6 Title Trust. Wells Fargo filed a motion to substitute U.S.

Bank as plaintiff and a motion for default judgment, both of which Tolliver opposed.

The Superior Court denied the motion to dismiss, granted the motion to substitute

parties, and denied the motion for default judgment.

(4) After Tolliver filed an answer to the complaint, U.S. Bank filed a

motion for summary judgment. The Superior Court held a hearing on the motion for

summary judgment on September 25, 2019. At the conclusion of the hearing, the

1 Appendix to Appellee’s Answering Brief at B15. Tolliver describes the Mortgage provided by U.S. Bank as “altered,” because U.S. Bank redacted the loan number. U.S. Bank explains that the loan number was redacted to protect Tolliver’s personally identifiable information. 2 Superior Court granted the motion for summary judgment. Tolliver filed a motion

for reargument, which the Superior Court denied. This appeal followed.

(5) We review the Superior Court’s grant or denial of a motion for

summary judgment de novo.2 On a motion for summary judgment, the movant must

demonstrate that there are no genuine issues of material fact and that the movant is

entitled to judgment as a matter of law.3 “When the evidence shows no genuine

issues of material fact in dispute, the burden shifts to the nonmoving party to

demonstrate that there are genuine issues of material fact that must be resolved at

trial.”4 Defenses in a foreclosure action are limited to payment, satisfaction, absence

of a seal, or a plea in avoidance of the deed.5

(6) On appeal, Tolliver argues that the Superior Court erred in granting the

motion for summary judgment because: (i) there was no indication that the Note was

assigned to U.S. Bank as required by this Court’s decision in Shrewsbury v. Bank of

New York Mellon, 160 A.3d 471 (Del. 2017); and (ii) there was no modification of

the Mortgage as required by Wachovia’s “Pick-a-Payment” mortgage loan

settlement in 2011. After careful consideration of the parties’ positions, we conclude

that Tolliver’s arguments are without merit.

2 ConAgra Foods Inc. v. Lexington Ins. Co., 21 A.3d 62, 68 (Del. 2011). 3 Super. Ct. Civ. R. 56(c). 4 Grabowski v. Mangler, 938 A.2d 637, 641 (Del. 2007). 5 Brooks v. BAC Home Loans Serv., LP, 2012 WL 3637238, at *1 (Del. Aug. 23, 2012) (citing Gordy v. Preform Building Components, Inc., 310 A.2d 893, 895 (Del. Super. Ct. 1973)). 3 (7) In Shrewsbury, this Court reversed the Superior Court’s granting of

summary judgment in favor of the assignee mortgagee in a foreclosure action

because there was a factual issue as to whether the assignee mortgagee had the right

to enforce the promissory note associated with the mortgage.6 We noted, in reaching

this conclusion, that the assignee mortgagee “did not produce the note, claim to be

the holder of the note, or claim to be entitled to enforce the note” in the Superior

Court proceedings.7 In this case, U.S. Bank asserted that it was the legal holder of

the Note in the Superior Court proceedings. Under 6 Del. C. § 3-301, a “[p]erson

entitled to enforce” an instrument includes the holder of the instrument. Section 3-

205(a) provides that an instrument indorsed in blank “becomes payable to bearer and

may be negotiated by transfer of possession alone until specially indorsed.” U.S.

Bank included a copy of the Note, indorsed in blank, with its motion for summary

judgment. Tolliver has not shown a genuine issue of material fact concerning U.S.

Bank’s status as holder of the Note and its standing to enforce the Mortgage.

(8) As to Tolliver’s contentions regarding Wachovia’s settlement of a

“Pick-a-Payment” mortgage loan class action in 2011, she has not shown that this

settlement required modification of the Mortgage. The 2011 article Tolliver offered

in support of this claim refers to the preliminary approval of a settlement in which

6 160 A.3d at 474-78. 7 Id. at 474. 4 Wachovia agreed to establish a $50 million settlement fund to resolve a class action

involving “Pick-a-Payment” mortgage loans. There is nothing to suggest that the

settlement required Wachovia to modify the Mortgage as desired by Tolliver.8

Having carefully reviewed the parties’ positions on appeal, we conclude that the

Superior Court did not err in granting U.S. Bank’s motion for summary judgment.

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

Court is AFFIRMED.

BY THE COURT: /s/ Collins J. Seitz, Jr. Chief Justice

8 According to the United States District Court for the Northern District of California’s decision approving the settlement, Wachovia established a $50 million settlement fund as well as a loan modification program to remain in place through June 2013. In re Wachovia Corp. “Pick-A- Payment” Mortg. Mktg. & Sales Practices Litig., 2011 WL 1877630, at *1-2 (N.D. Cal. May 17, 2011). The district court noted that not all class members would be entitled to loan modification. Id. at *4. 5