Full Opinion (html_with_citations)

       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


MIDFIRST BANK,         )
                       )                  C.A. No. K21L-06-005 NEP
            Plaintiff, )
                       )                  NON-ARBITRATION
    v.                 )                  In Rem
                       )                  Sci. Fa. Sur Mortgage Action
CATHERINE MULLANE,     )                  Mortgage Record 011998010448
                       )                  Book 00538 Page 0298
            Defendant. )                  Parcel No. 8-00-12901-02-4500-00001



                            Submitted: November 22, 2023
                             Decided: December 26, 2023

                                         ORDER


                  Upon Plaintiff’s Motion for Summary Judgment.

                                       GRANTED



                               I.    INTRODUCTION

       1.     Before the Court is a Motion for Summary Judgment (the “Motion”)
filed by Plaintiff MidFirst Bank (“MidFirst”).1 On June 11, 2021, MidFirst filed a
scire facias sur mortgage complaint (the “Complaint”) against Defendant Catherine
Mullane (“Ms. Mullane”) in which it sought foreclosure of its interest in the property
located at 193 New Castle Avenue, Felton, Delaware 19943 (the “property”) under

1
 Mot. for Summ. J. in Favor of Pl. (D.I. 54) [hereinafter “Mot. for Summ. J.”]. Additionally,
pursuant to 10 Del. C. § 5062A, MidFirst filed an Exemption from Loss Mitigation Affidavit
concurrently with the Motion.
the mortgage referenced in the Complaint (the “Mortgage”).2
       2.     On June 23, 1998, the property was deeded to Anna M. Stanley. 3 On
July 9, 1999, Ms. Stanley deeded the property both to herself and Ms. Mullane as
joint tenants with right of survivorship.4 On May 2, 2002, Ms. Stanley passed away.5
       3.     The Mortgage provides that, upon Ms. Mullane’s failure to pay when
due an obligation or any portion thereof, then the loan shall be deemed to be in
default, and MidFirst, after notice and opportunity to cure, may accelerate the sum
secured by the Mortgage.6 In so doing, it may foreclose upon the property for the
collection of the obligation together with the costs of suit, attorneys’ fees, and all
sums expended thereafter to preserve the property and MidFirst’s security.7
       4.     On March 28, 2023, Ms. Mullane was served with MidFirst’s
Complaint.8 On March 29, Ms. Mullane filed her Answer, in which she admitted
that she ceased making mortgage payments; however, she denied that she received
a notice of acceleration.9 She also filed a motion to dismiss alleging that the
Complaint was time-barred.10
       5.     On June 12, 2023, the Court denied Ms. Mullane’s motion to dismiss,11
and on August 31, the Court granted MidFirst’s motion to dismiss Ms. Mullane’s
counterclaims and struck the affirmative defense set forth in paragraphs 8 through
18 of her Answer.12

2
  Compl. (D.I. 1).
3
  Mot. for Summ. J. ¶ 2.
4
  Id.
5
  Id.
6
  See Compl. Ex. A. (Mortgage).
7
  See id.
8
  D.I. 27.
9
  Answer (D.I. 28) ¶ 5.
10
   Mot. to Dismiss (D.I. 29).
11
   See generally MidFirst Bank v. Mullane,
2023 WL 3960843
 (Del. Super. June 12, 2023) (D.I.
49).
12
   MidFirst Bank v. Mullane,
2023 WL 5663252
, at *3 (Del. Super. Aug. 31, 2023) (D.I. 53).
                                             2
       6.     On September 8, 2023, MidFirst filed the Motion.13 Ms. Mullane was
allowed until September 22, 2023, to file a response to the Motion.14 On November
2, 2023, Ms. Mullane filed, out-of-time, a Motion for Extension of Time in which
she sought a stay of proceedings for thirty days to give her an opportunity to retain
legal counsel.15 The Court denied Ms. Mullane’s Motion for Extension of Time and
ordered her to file a response to the Motion by November 21, 2023.16 Ms. Mullane
has not filed a response to the Motion.
       7.     On December 19, 2023, Ms. Mullane filed an Emergency Motion for
Extension of Time Due to Medical Impairment seeking an additional extension of
forty-five days, again to allow her to retain counsel.17 The Court denied this
Motion.18
                  II.   APPLICABLE LEGAL STANDARDS

       8.     Summary judgment is appropriate in a situation in which the record
demonstrates 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.”19 The Court “(i) construes
the record in the light most favorable to the non-moving party; (ii) detects, but does
not decide, genuine issues of material fact; and (iii) denies the motion if a material
fact is in dispute.”20 A fact is material if it “might affect the outcome of the suit
under governing law.”21


13
   Mot. for Summ. J.
14
   D.I. 56.
15
   Motion for Extension of Time (D.I. 57).
16
   Letter Order Nov. 6, 2023 (D.I. 60) at 2 [hereinafter “Letter Order”].
17
   D.I. 61.
18
   D.I. 66.
19
   Super. Ct. Civ. R. 56(c); see also Brzoska v. Olson,
668 A.2d 1355, 1364
 (Del. 1995).
20
   US Dominion, Inc. v. Fox News Network, LLC,
2023 WL 2730567
, at *17 (Del. Super. Mar. 31,
2023) (quoting CVR Refin., LP v. XL Specialty Ins. Co.,
2021 WL 5492671
, at *8 (Del. Super.
Nov. 23, 2021)).
21
   Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
 (1986).
                                             3
       9.      At the outset, the moving party bears the burden of persuasion, under
which it must demonstrate that the undisputed facts support that party’s claims or
defenses.22 If the moving party meets this initial burden, then the burden shifts to
the non-moving party to demonstrate that there are material issues of fact.23
       10.     The non-moving party “must do more than simply show that there is
some metaphysical doubt as to material facts.”24 To meet its burden, the non-moving
party must identify likely admissible evidence in the record that generates such an
issue.25 Mere denials and unsupported conclusory denials in an affidavit do not
constitute admissible factual evidence.26
       11.     An important function of summary judgment is “to secure the just,
speedy and inexpensive determination of every action.”27 If the Court “finds that no
genuine issues of material fact exist, and the moving party has demonstrated [its]
entitlement to judgment as a matter of law, then summary judgment is
appropriate.”28
                                    III.    ANALYSIS

       12.     In a scire facias sur mortgage action, the defendant must plead one of
three defenses: (1) payment; (2) satisfaction; or (3) avoidance of the mortgage.29 “A
plea in avoidance must ‘relate to the mortgage sued upon, i.e., the plea must relate



22
   Moore v. Sizemore,
405 A.2d 679, 680
 (Del. 1979) (citing Ebersole v. Lowengrub,
180 A.2d 467, 470
 (Del. 1962)).
23
Id.
 at 681 (citing Hurtt v. Goleburn,
330 A.2d 134
 (Del. 1974)); see also Brzoska,
668 A.2d at 1364
.
24
   Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586
 (1986).
25
   Phila. Indem. Ins. Co. v. Bogel,
269 A.3d 992
, 1018 (Del. Super. 2021).
26
   Kennedy v. Giannone,
527 A.2d 732
,
1987 WL 37799
, at *1 (Del. 1987) (TABLE).
27
   Celotex Corp. v. Catrett,
477 U.S. 317, 327
 (1986) (citations omitted).
28
   Brooke v. Elihu-Evans,
1996 WL 659491
, at *2 (Del. Aug. 23, 1996) (citing Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc.,
312 A.2d 322
 (Del. Super. 1973)); see also Jeffries v. Kent Cnty.
Vocational Tech. Sch. Dist. Bd. of Educ.,
743 A.2d 675, 677
 (Del. Super. 1999).
29
   Wells Fargo Bank, NA v. Nickel,
2011 WL 6000787
, at *2 (Del. Super. Nov. 18, 2011).
                                                 4
to the validity or illegality of the mortgage documents.’”30 Examples include “acts
of God, assignment, conditional liability, duress, exception, forfeiture, fraud,
illegality, justification, non-performance of condition precedents [sic], ratification,
unjust enrichment and waiver.”31 Finally, an unsupported defense does not, by itself,
raise a genuine issue of material fact.32
       13.    Pursuant to Superior Court Civil Rule 56(e), when a motion for
summary judgment has been “made and supported,” the non-moving party “may not
rest upon the mere allegations or denials of the [non-moving] party’s pleading,” but
“must set forth specific facts showing that there is a genuine issue for trial.”33
Furthermore, “[i]f the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.”34
       14.    Here, MidFirst has demonstrated that there are no genuine issues of
material fact and that it is legally entitled to judgment as a matter of law. Ms.
Mullane has filed no response, although the Court granted her additional time—
nearly two months after her initial response was due—to file such a response.
Summary judgment is appropriate for two reasons: first, because the denials in Ms.
Mullane’s Answer do not raise a genuine issue of material fact, and her affirmative
defenses (essentially, statute of limitations and unclean hands) have been denied or
stricken;35 and second, she is not allowed by Rule 56 to rely upon the allegations and
denials of her Answer but must set forth specific facts showing that there is a genuine
issue for trial, and she has failed to do so.


30
Id.
 (quoting Am. Nat. Ins. Co. v. G-Wilmington Assocs., L.P.,
2002 WL 31383924
, at *2 (Del.
Super. Oct. 18, 2002)) [hereinafter “ANI Co.”].
31
Id.
 (citing ANI Co.,
2002 WL 31383924
, at *2).
32
   Teeven v. Kearns,
1993 WL 1626514
, at *4 (Del. Super. Dec. 3, 1993).
33
   Super. Ct. Civ. R. 56(e).
34
Id.
35
   See MidFirst Bank v. Mullane,
2023 WL 3960843
, at *2; MidFirst Bank v. Mullane,
2023 WL 5663252
, at *3.
                                              5
      15.   Therefore, pursuant to Superior Court Civil Rule 56(e), summary
judgment shall be entered in MidFirst’s favor and against Ms. Mullane.
      For the foregoing reasons, IT IS HEREBY ORDERED that MidFirst’s
Motion for Summary Judgment is GRANTED;
      IT IS FURTHER ORDERED that Judgment is hereby entered against Ms.
Mullane in the following amount, to be levied out of the premises described in the
Mortgage:



Principal Balance                                  $                     31,895.04
Interest from 06/01/2018 to 12/26/23               $                     11,546.08
Incurred Fees                                      $                      9,210.81
Taxes                                              $                      7,091.86
Insurance                                          $                        679.50
Late Charges                                       $                      1,091.91
TOTAL DEBT DUE                                     $                     61,515.20

      IT IS FURTHER ORDERED that the following are included in the
judgment: interest to date of confirmation, escrow advances to date of confirmation,
reasonable counsel fees as provided in the Mortgage, costs, and all other sums now
due or that may become due under the Mortgage.




NEP:tls
oc: Prothonotary
cc: Melanie J. Thompson, Esquire, Orlans PC - Via File & ServeXpress
     Catherine Mullane, Pro Se – Via U.S. Mail


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