IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANTHIUM, LLC , ) ) Plaintiff, ) )
v. ) C.A. No. N18L

- 09

- 044 ALR ) LOUISE SHELTON , as personal ) representative of the ESTATE OF ) JOSEPH WOOD, TANYA R. ) GLASCO, heir, REGINALD L. ) HARRIS, heir, IRA D. JONES, heir, ) TIFFANY L. MATTHEWS, heir, ) STACEY MCBALL, heir, LOUISE ) SHELTON, heir, ANNETREA L. ) WILKINS, heir, JOSEPH A. WOOD, ) heir, MYRA CLE WOOD, heir, ) TIANNA S. WOOD, heir, ) ) Defendan ts

. )

Submitted: November 5, 2019 Decided: December 4 , 2019 Upon Defendant Reginald L. Harris ’s Motion for Summary Judgment

DENIED WITHOUT PREJUDICE Upon Plaintiff’s Motion for Summary Judgment DENIED WITHOUT PREJUDICE
MEMORANDUM OPINION

Catherine Di Lorenzo, Esquire, Wilmington, Delaware, Attorney for Plaintiff. Reginald L. Harris, Self

- Represented Litigant. Rocanelli, J.1

This is a scire facias sur mortgage action. Defendant Reginald L. Harris (“ Harris ”) and Plaintiff Anthium, LLC (“Plaintiff”) have submitted cross

- motions for summary judgment. Harris initially filed a motion to dismiss , but b ecause Harris
submitted various supplemental materials with his motion, the Court converted
Harris’s motion to dismiss in to a motion for summary judgment. T he parties were
afforded the opportunit y to present all materials pertinent to such a motion under Superior Court Rule of Civil Procedure 56

. Plaintiff o pposes Harris’s motion.
Plaintiff has filed a motion for summary judgment which Harris opposes
. The other defendants in this action ( collectively with Harris, “Defendants”) have taken no position on the pending motions.
FACTUAL BACKGROUND
Harris is an heir of Joseph Wood. In 2007, Joseph Wood and Bridgette D. Hall (“ Bridgette Hall”) executed a home loan (“Loan”) with Citifinancial, Inc. (“Citifinancial”). To secure the Loan, Joseph Wood executed a mortgage (“Mortgage”), which Joseph Wood delivered to Citifinancial. The Mortgage , which was recorded in New Castle County, granted a first priority lien on the property located at 65 Kennard Drive, Newark, Delaware 19711 (“Property”) to Citifinancial. Joseph Wood is the sole mortgagor listed on the Mortga ge. The Mortgage contains various agreements between Joseph Wood and
Citifinancial . First, the parties agreed that Joseph Wood would make timely2

payments on the Loan and that Joseph Wood’s failure to make timely payments
would constitute a breach of the Mortgage and entitle Citifinancial to declare the
Loan due and foreclose on the Mortgage after providing Joseph Wood with notice of the breach and an opportunity to cure

. With respect to the notice and opportunity to cure, the parties agreed that the noti ce would specify (1) the breach; (2) the action required to cure the breach; (3) a date, not less than 10 days from the notice date, by which the breach must be cured; and (4) that a failure to cure the breach by the specified date may result in accelerati on of the Loan sums, judicial foreclosure, and sale of the Property. The parties also agreed that any forbearance by Citifinancial in exercising its rights under the Mortgage would not constitute waiver of th ose rights or preclude Citifinancial from exercising those rights. Finally, the parties to the Mortgage agreed that the covenants and rights contained in the Mortgage would bind and inure to the parties’ successors and assigns. Joseph Wood died without a will on December 14, 2012

. At the time of his death, Joseph Wood was married to Bridgette Wood. 1 Pursuant to Delaware’s intestate succession laws Bridgette Wood received a life estate in the Property and Joseph Wood’s heirs received future interests in the Property. 2 In September 2015,

1 The record is silent regarding whether Bridgette Wood and Bridgette Hall are the same person, but the Court presumes that that they are. The Court’s analysis is not dependent on this presumption. 2 See 12 Del. C. § 502. While the parties agree that Dela ware’s intestate succession laws apply and that the interests in the Property distributed in this manner, neither3

C itifinancial assigned the Mortgage to Citifinancial Servicing, LLC, which then assigned the Mortgage to Bayview Loan Servicing, Inc. (“Bayview”). Meanwhile, Joseph Wood’s estate and/or Bridgette Wood defaulted on the Mortgage by failing to make payments o n the Loan. Bridg ette Wood died in February 2018, at which
time Joseph Wood’s heirs acquired possessory interests in the Property. 3 During the pendency of this action, Bayview assigned the Mortgage to Atlantica, LLC, which
then assigned the Mortgage to P lainti ff.
LEGAL STANDARD 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.” 4 The moving party bears the initial

party cites to specific statutory authority. Moreover, neither party indicates whether any of Joseph Wood’s surviving issue were also issue o f Bridgette Wood , which is relevant to the distribution of a decedent’s intestate estate. See id. § 502(3), (4). Upon review of the relevant statutory authority, the Court is satisfied that the interests in the Property distributed according to the parti es’ representations, regardless of whether Joseph Wood’ s surviving issue were issue of Bridgette Wood as well. See id. § 502(3) (providing the surviving spouse a life estate in intestate real estate when all surviving issue are issue of the surviving spou se); id. § 502(4) (providing the surviving spouse a life estate in intestate real estate when one or more surviving issue are not issue of the surviving spouse). 3 The parties agree that Joseph Wood’s heirs acquired possessory interests in the Property upon Bridgette Wood ’s death but cite no legal authority for this proposition. U pon review of Delaware law, the Court is satisfied that Joseph Wood’s heirs acquired possessory interest s in the Prop erty upon Bridgette Wood ’s death. See 12 Del. C. § 503(1) (“The part of the intestate estate not passing to the surviving spouse .

. . passes .
. . [t]o the issue of the decedent, per stirpes .

. . .”). 4 Super. Ct. Civ. R. 56.4

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. 5 “ A fact is material if it ‘ might affect the outcome of the suit under the governing law. ’ ” 6 “ A dispute about a material fact is genuine when ‘ the evidence is such that a reasonable jury could return a verdict for the nonmoving party. ’ ” 7 Thus, the issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one

- sided that one party must prevail as a matter of law.” 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
DISCUSSION
I. Harris’s Motion for Summary Judgmen t
A. The Complaint Is Not Time
- Barred
Harris argues that he is entitled to summary judgment because the Complaint
is time

- barred pursuant to 12 Del. C. § 2102(a), which provides: All claims against a decedent’s estate which arose before or at the death of t he decedent, . . . whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contr act, tort or other legal basis, except debts of which notice is presumed pursuant to § 2103

5 Moore v. Sizemore , 405 A. 2d 679, 680

– 81 (Del. 1979). 6 Smith v. Haldeman , 2012 WL WL 3611895 , at * 2 (Del. Super. Ct. Aug. 21, 2012) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 243 (1986)). 7 Gateway Estates, Inc. v. New Castle Cty. , 2015 WL 13145613 , at *13 (Del. Super

. Ct. Sept. 19, 2015) (quoting Anderson , 477 U.S. at 248 ). 8 Id. (quoting Anderson , 477 U.S. at 251

– 52). 9 Brzoska v. Olson , 668 A.2d 1355, 1364 (Del. 1995).5

of this title , if not barred earlier by other s tatute of limitations , are barred against the estate, the personal representative and the heirs and devisees of the decedent unless presented . . . within 8 months of the decedent’s death. 10
Harris argues that Section 2102(a)’s eight

- month time

- bar precludes Plaintiff’s claims because the Complaint was not filed until six years after Joseph Wood’s
death. Section 2102(a)’s eight

- month time

- bar does not preclude Plaintiff’s claims. First, Plaintiff’s claims arise from “debts of which notice is presume d pursuant to”
12 Del. C. § 2103 . Section 2103 provides: An executor or administrator shall be deemed to have notice only to mortgages (but not of the bonds accompanying such mortgages) and of such judg ments as would be liens against real estate at the date of death of the decedent, which mortgages and judgments are of record in the county of this State in which letters were granted upon the estate of the decedent, unless there has been a failure to inse rt them in the general indices of the office wherein it is proper that they be recorded. 11 The Mortgage was recorded in New Castle County, Delaware, the same county in which the letters testamentary were granted. Accordingly, notice of the mortgage is

pre sumed pursuant to Section 2103.
Second , Plaintiff’s claim s w ere not barred earlier by an other statute of limitations. Section 2102(e)(2) of Title 12 provides a mortgage

- foreclosure

10 12 Del. C. § 2102(a) (emphasis added). 11 12 Del. C. § 2103.6

exception to Section 2102’s general time

- bar rules

. Specifically, Section 2102(e)(2) provides: The failure to present a claim on a bond secured by a mortgage on real estate, in accordance with the foregoing provisions, shall not invalidate the bond so as to prevent the foreclosure of the mortgage on real estate at any time thereafter, but no claim may b e asserted against the decedent’ s estate on or by reason of the bond. 12
Plaintiff seeks an in rem foreclosure judgment on the Mortgage, not a monetary judgment on the bond or note. Accordingly, Plaintiff’s failure to present the claim within eight months after Joseph Wood’s death did not “ invalidate the bond so as to prevent the foreclosure of the mortgage .” 13 Because notice of the Mortgage is presumed pursuant to Section 2103 and
Plaintiff’s cl aims were not barred earlier by other statutes of limitations, Section 2102(a)’s eight

- month time

- bar does not preclude Plaintiff’s claims. Therefore,
Harris has not shown that he is entitled to judgment as a matter of law on this basis

. B. Harris Does Not E stablish Fraud or Coercion
Harris ’s motion also states that Harris “would like to take issue with the fraudulent loan and mortgage,” which Harris alleges were the result of coercion.
Harris pleads no facts and provides no evidence supporting these allega tions. Harris
therefore has not satisfied his initial burden of “showing” that no material issues of

12 12 Del. C. § 2102(e)(2). 13 Id.7

fact are present. 14 Accordingly, Harris is not entitled to summary judgment on this
basis and Harris’s motion for summary judgment must be denied. 15
II. Plaintiff’s Motion for Summary Judgment Plaintiff argues that it is entitled to summary judgment because there is no dispute that Defendants are in breach of the Mortgage’s terms. Plaintiff correctly
states that D efendants ’ breach is not disputed

. Howev er, o n this record, Plaintiff has
nevertheless failed to meet its initial burden because Plaintiff has provided no evidence showing it provided Defendants with notice and opportunity to cure the
breach

. The Court determines whether a genuine issue of mate rial fact exists based
on evidence in the record. 16 The Mortgage conditions Plaintiff’s right to foreclose the Mortgage on Defendants’ failure to cure the breach “on or before the date specified in the notice.” Plaintiff points to no evidence showing that Plaintiff provided Defendants with notice of the breach or time to cure , as required by the

14 See Moore , 405 A.2d at 680 (“ A summary judgment may not be granted under Rule 56 unless there are no material issues of fact , and the moving party initially bears the burden of showing that none are present. ” (citation omitted)). 15 See id. at 680

– 81; see a lso Super. Ct. Civ. R. 9(b) (“In all averments of fraud, .

. . the circumstances constituting fraud .

. . shall be stated with particularity.”). 16 See Elenza, Inc. v. Alcon Labs. Holding Corp. , 183 A.3d 717, 721 (Del. 2018) (“ The movant must present suffic ient evidence from which a rational trier of fact could find in its favor .”); see also Super. Ct. Civ. R. 56(c) (“ The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together wi th the affidavits, if any, 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. ”).8

Mortgage. T herefore, Plaintiff has not met its initial burden of showing no genuine issue as to any material fact. Accordingly, summary judgment is inappropriate on this record and Plaintiff’s motion must be denied.
CONCLUSION The Complaint is not time

- barred and Harris is therefore not entitled to judgment as a matter of law on that basis ; summary judgment is therefore denied

. In addition, Harris has not provided support for his claim that the mortgage result ed
from fraud or coercion ; summary judgment is therefore denied without prejudice

. With respect to Plaintiff’s motion , Plaintiff has produced no evidence showing that it complied with the notice and o pportunity

- to

- cure requirements upon which the Mortgage conditions Plaintiff’s right to foreclose ; summary judgment is therefore denied without prejudice. NOW, THEREFORE, this 4th day of December 2019, Defendant Reginald Harris’s motion for summary judgmen t is hereby DENIED as to the
statute of limitations and DENIED WITHOUT PREJUDICE as to fraud and
coercion and Plaintiff’s motion for summary judgment is hereby DENIED
WITHOUT PREJUDICE.
IT IS SO ORDERED. 

## Andrea L. Rocanelli

_____________________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________________ ______ _____________________________________________________________________________________________________________________________ __________________________________________________ The Honorable Andrea L. Rocanelli