U.S. Bank National Association v. Keath

• Court: Superior Court of Delaware
• Decided: September 20, 2017
• Docket: N16L-04-103 ALR
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

U.S. BANK NATIONAL ) ASSOCIATION, ) ) Plaintiff, ) ) v. ) C.A. No. N16L-04-103 ALR ) KATHLEEN C. KEATH, ) ) Defendant. )

Submitted: July 18, 2017 Decided: September 20, 2017

ORDER

Upon Plaintiff’s Motion for Summary Judgment GRANTED

This is a mortgage foreclosure case. Upon consideration of the Motion for

Summary Judgment filed by Plaintiff U.S. Bank National Association (“Plaintiff”);

the Superior Court Civil Rules; the facts, arguments, and authorities set forth by

Plaintiff; statutory and decisional law; and the entire record in this case, the Court

hereby finds as follows:

1. On February 6, 2006, Defendant Kathleen Keath (“Defendant”)

executed a mortgage (“Mortgage”) on property located at 708 Staghorn Drive,

New Castle, Delaware 19720 (“Property”) to Mercantile Mortgage, LLC

(“Mercantile”). The Mortgage defines Defendant as the “Borrower” and Mercantile as the “Lender.”1 The Mortgage defines “Note” as “the promissory

note signed by Borrower and dated February 06, 2006. The Note states that

Borrower owes Lender TWO HUNDRED TWENTY THOUSAND AND 00/100

[$220,000.00].”2

2. Mercantile subsequently assigned its entire interest in the Mortgage to

Wells Fargo, which in-turn assigned its interest to Mortgage Electronic

Registration Systems, which in-turn assigned its interest to Plaintiff.

3. Defendant has failed to make payments on the Mortgage since

approximately August 1, 2013.

4. Plaintiff filed an Scire Facias Sur mortgage foreclosure complaint on

April 25, 2016. A Final Mediation Record was filed on October 20, 2016

indicating that the parties agreed to forgo mediation and proceed with the

foreclosure action. The Defendant then answered the complaint on October 25,

2016.

5. A scire facias sur mortgage action “is an in rem proceeding used to

foreclose on a mortgage.”3 Delaware law only recognizes three possible defenses

1 Plaintiff’s Comp., Apr. 25, 2016, Ex. A., p. 1. 2 Id. at 2. 3 JPMorgan Chase Bank v. Hopkins, 2013 WL 5200520, at *2 (Del. Super. Sept. 12, 2013). 2 to a scire facias sur mortgage action: payment, satisfaction, and plea in avoidance.4

Defendant did not plead any of these defenses in her answer.

6. Plaintiff filed its motion for summary judgment on March 7, 2017.

The Court sent a letter to Defendant on March 8, 2017, advising that Defendant’s

response to the motion for summary judgment should be filed by April 10, 2017 or

the motion would be considered unopposed. The Court sent another letter to

Defendant on April 28, 2017 stating that no response had been received and the

motion would be considered by the Court as unopposed. Defendant has not

responded to these communications or submitted any opposition Plaintiff’s motion

for summary judgment.

7. In the meantime, on April 17, 2017, the Delaware Supreme Court

issued its opinion in Shrewsbury v. The Bank of New York Mellon.5 In Shrewsbury,

the Supreme Court held that a mortgage holder “must be a party entitled to enforce

the obligation … which the mortgage secures in order to foreclose on the

mortgage.”6 By letter dated June 12, 2017, the Court requested supplemental

submissions from Plaintiff and also advised Defendant that a response to any

supplemental submission was due by July 14, 2017. In order to comply with

Shrewsbury, Plaintiff filed a supplemental exhibit indicating that Plaintiff received

4 Id. 5 160 A.3d 471 (Del. 2017). 6 Id. at 477. 3 an endorsement from Mercantile on the Note underlying the Mortgage. Defendant

did not respond.

7. The Court may grant summary judgment only where the moving party

can “show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”7 The moving party bears the

initial burden of proof and, once that is met, the burden shifts to the non-moving

party to show that a material issue of fact exists.8 At the motion for summary

judgment phase, the Court must view the facts “in the light most favorable to the

non-moving party.”9

8. Plaintiff is entitled to summary judgment. Defendant does not

dispute that she is in default of the Mortgage and did not plead any cognizable

defenses. Plaintiff is the valid assignee of the Mortgage and is entitled to enforce

the underlying Note.

NOW, THEREFORE, this 20th day of September 2017, Plaintiff’s Motion for Summary Judgment is hereby GRANTED and JUDGMENT is entered in favor of Plaintiff U.S. Bank National Association and against Defendant. IT IS SO ORDERED. Andrea L. Rocanelli ____________________________________ The Honorable Andrea L. Rocanelli

7 Super. Ct. Civ. R. 56. 8 Moore v. Sizemore, 405 A.2d 679, 680–81 (Del. 1979). 9 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995). 4