Truist Bank v. Joseph B. Elad

• Court: Superior Court of Delaware
• Decided: December 11, 2023
• Docket: N23C-02-243 DJB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TRUIST BANK, formally known as ) Branch Banking and Trust Company, ) Plaintiffs, ) ) C.A. NO. N23C-02-243 DJB v. ) ) JOSEPH B. ELAD, ) Defendant. )

Submitted: November 13, 2023 Decided: December 11, 2023

ORDER DENYING DEFENDANT’S MOTION FOR INJUNCTION AND DISQUALIFICATION

This 11th day of December, 2023, upon consideration of Defendant Joseph

B. Elad’s (“Defendant”) Motion for Injunction and Disqualification,1 the record of

this civil action (“Ejectment Action”); and the record of the related Sci Fa Sur

Mortgage Action (the “Foreclosure Action”),2 it appears to the Court that:

1. On September 8, 2021, this Court entered judgment against Defendant

Joseph B. Elad (“Defendant”) in the Foreclosure Action.3

2. Defendant unsuccessfully moved to stay and vacate the judgment in

the Foreclosure Action on numerous occasions.4

1 N23C-02-243 DJB - D.I. D.I. 37, 38; 47. 2 N17L-06-100 EMD. 3 N17L-06-100 EMD - D.I. 50, 53, 82. 4 N17L-06-100 EMD - D.I. 53, 57, 59, 64, 73-74. 3. On March 8, 2022, 2700 Philadelphia Pike, Claymont, DE (the

“Property”) was purchased at Sheriff Sale by Plaintiff.5

4. Following the sale, Defendant filed multiple amended counterclaims

against Plaintiff alleging lack of due process, fraud, conspiracy, and judicial

misconduct, among other theories.6 On June 30, 2022, the Court dismissed

Defendant’s counterclaims with prejudice, noting the time to file such

counterclaims expired under Rule 13 of the Delaware Superior Court Rules of

Civil Procedure.7 Notably, Defendant’s counterclaims generally reasserted

previously denied claims seeking to vacate or stay the Sheriff’s Sale. 8 Defendant

continued to file repetitive motions, which led the Court to reject future filings

from Defendant without leave of the Court.9

5. After the conclusion of the Foreclosure Action, Defendant continued

to occupy the Property, prompting Plaintiff to file the instant Ejectment Action on

February 28, 2023.10

6. On March 24, 2023, the Court issued a Rule to Show Cause, to which

Defendant responded on April 25, 2023.11 That same day, Defendant filed a host

5 N17L-06-100 EMD - D.I. 80. 6 N17L-06-100 EMD - D.I. No. 77-78, 81, 86, 90. 7 N17L-06-100 EMD - D.I. 82. 8 N17L-06-100 EMD - D.I. 53, 59, 64. 9 D.I. 95. In so deciding, the Court determined the repetitive filings were frivolous. 10 N23C-02-243 DJB - D.I. 1. 11 N23C-02-243 DJB - D.I. 3, 9. of counterclaims against Movants, which largely seek to relitigate issues

considered and denied by this Court in the Foreclosure Action.12 On May 30,

2023, Movants moved to dismiss the counterclaims.13 That motion was granted

and the counterclaims were dismissed.14 The Writ of Ejectment/Possession

requested in the initial Complaint was then Ordered.15 The Court, however,

declined to award costs to Plaintiff, despite the numerous attempts made to evade

the legal process by Defendant by means of continuous, legally baseless filings.16

7. Defendant filed a Motion to Reopen17 the ejectment action, which was

denied.18 Defendant also filed a Writ of Habeas Corpus and Writ of Mandamus.19

Both of which were also denied.20

8. Defendant filed the instant Motion for Recusal and Dismissal of the

prior Court Orders and a demand to “hear habeas corpus” on November 3, 2023,

and they were docketed on November 6, 2023. Defendant supplemented these

motions on November 13, 2023, including a request for an immediate injunction.21

The basis for this motion lies in the fact that Defendant attempted to file a

12 N23C-02-243 DJB - D.I. 10. 13 N23C-02-243 DJB - D.I. 20. 14 N23C-02-243 DJB - D.I. 35. 15 N23C-02-243 DJB - D.I. 44. 16 N23C-02-243 DJB - D.I. 35. 17 N23C-02-243 DJB - D.I. 37. 18 N23C-02-243 DJB – D.I. 45. 19 N23C-02-243 DJB - D.I. 42. 20 N23C-02-243 DJB – D.I. 46. 21 N23C-02-243 DJB – D.I. 37, 38; 47. counterclaim to the ejectment action, accusing this judicial officer of misconduct,

requesting a sum of money for damages and thus now alleges this judicial officer

has a conflict of interest as a result. Defendant additionally alleges that because

this judicial officer dismissed the Writ for Habeas Corpus, there was a violation of

duties and recusal should follow.22

9. When faced with a motion for recusal, a judge must undergo a two-

step analysis in deciding whether to disqualify him or herself. First, the judicial

offer must be “subjectively satisfied that he or she can proceed to hear the cause

free of bias or prejudice concerning [the] party.”23 Next, the judicial officer must

“examine objectively whether the circumstances require recusal because of an

appearance of bias sufficient to cause doubt as to the judge’s impartiality.” The

Court is also to be mindful of the Delaware Judge’s Code of Conduct Rule 2.7(A),

which mandates a judge’s duty to sit unless and until the judge is disqualified or

convinced of the need to recuse.

10. Here, under the subjective analysis, this judicial officer is convinced

of the ability to proceed without bias or prejudice for Mr. Elad. The Court is

sympathetic to his situation, however, has an obligation to follow the law. All of

the previous decisions of this Court have been based solely upon the applicable law

and not based on any preconceived notions with respect to Mr. Elad, nor does the

22 Id. 23 Gattis v. State, Los v. Los, 595 A.2d 381, 384-385 (Del. 1991). Court have any such notions. Second, after objectively evaluating the

circumstances, the Court does not find that there is the appearance of bias or

impropriety sufficient to warrant recusal. The record of this case evidences that

while Mr. Elad has not been successful on the substantive motions filed in defense

of this ejectment action, Mr. Elad has prevailed in that 1) costs were not awarded

and that 2) Mr. Elad was given the opportunity to be heard for oral argument on his

motions upon his request, although he ultimately failed to appear.

11. The fact that this judicial officer was the subject of the attempted

counterclaim did not and will not factor into any decision making of the Court, nor

is there a risk of that perception given the procedural history of decisions in this

case.24

12. As a result, the Motion for Disqualification is DENIED.

13. Likewise, the Motion for Injunction is DENIED as the basis for the

requested injunction cited is the request for this judicial officer’s recusal.

24 The fact that the Court’s November 3, 2023, Order notating security concerns as one of the reasons that the Motion to Dismiss was to be held virtually and not in a live courtroom was not based upon any preconceived notions of the judicial officer, but was for a myriad of reasons, including the numerous filings in this case, the obvious emotional toll on Mr. Elad surrounding this litigation as evidenced by of his filings and staffing and logistical issues faced by the Court. THEREFORE, Defendants multiple Motions filed for Disqualification,

Dismissal of the November 3, 2023, and the accompanying Motion for an

Immediate Injunction are DENIED.

IT SO ORDERED.

_____________________________ Danielle J. Brennan, Judge

Cc: Counsel via File&Serve Express Joseph E. Elad (via United States Postal Service)