1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WELLS FARGO BANK, NA

,

Plaintiff,

v.

SARITA M. BANNING and WILLIAM C. BANNING, JR.,

Defendants. )

) ) C.A. No. N19L

- 07

- 016 MAA ) ) ) ) ) ) ) ) )

Submitted: October 23 , 2020 Decided: January 2 1

, 202 1

Upon Plaintiff’s Motion for Summary Judgment:

GRANTED

MEMORANDUM OPINION

Seth A. Niederman , Esquire (Argued), and Katelyn M. Crawford , Esquire of F OX ROTHSCHILD, LLP

, Wilmington , Delaware, and Melanie J. Thompson, Esquire of ORLANS, PC; counsel for Plaintiff.
Sarita M. Banning (Argued) and William C. Banning, Jr., Middletown, Delaware; self

- represented Defendants.

Adams, J.2

I. INTRODUCTION

This is an in rem mortgage foreclosure action arising from plaintiff Wells

Fargo Bank, NA’s mortgage (the “ Mortgage ” ) 1 with defendants Sarita M. Banning

and William C. Banning, Jr

. ( collectively, the “Bannings”)

. The Mortgage covers

property located at 406 Virginia Drive, Middletown, Delaware 19709 (the

“Property”). Wells Fargo Bank, NA (“Wells Fargo”) filed a scire facias sur

mortgage complaint against the Bannings seeking foreclosure of the Banning’s

interest in the property. The Bannings subsequently br ought counterclaims against

Wells Fargo. Wells Fargo argues that summary judgment is appropriate because the

Bannings failed to plead any of the recognized defenses available in a scire facias

sur mortgage action

. 2 The Bannings filed a n Opposition and Objection to Plaintiff’s

Motion for Summary Judgment, 3 opposing the relief sought by Wells Fargo. The

Bannings are self

- represented litigants and throughout the course of this action have

claimed to be improper defendants. 4

1 See Wells Fargo, NA’s Complaint (“Compl.”), at Ex. A.

2 Dkt. 48 at ¶ 10.

3 Dkt. 54.

4 See, e.g., October 23, 2020 Hearing Transcript, Dkt. 77 at 1 3

- 15

. The Court rejects any attempt by the Bannings to claim that they are not the proper defendants in this foreclosure action

. See LSF9 Master Participation Tr. v. Tucker , 2017 WL 1407995

, at *5 (Del. Super. Apr. 19, 2017), aff’d sub nom. Matter of El , 168 A.3d 673 (Del. 2017) (“All individuals residing in the United States are subject to civil liability and can be sued in both federal and state courts.”).3

Upon consider ation of Wells Fargo’s Motion for Summary Judgment ; the

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

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

GRANTS Wells Fargo’s Motion for Summary Judgment and DISMISSES the

Banning’s counterclaims.

II. FACTUAL BACKGROUND

On August 31, 2011, the Bannings executed and delivered the Mortgage on

the Property to Wells Fargo. 5 The Mortgage acts as the security instrument for a

residential loan in the amount of $387,050

. 00. 6

The Bannings have failed to make their monthly mor tgage payments since

August 1, 2018

. 7 Wells Fargo demanded payment and informed the Bannings that

it would, pursuant to the Mortgage, accelerate the balance due if the Bannings did

not render payment. 8 The Mortgage provides , in relevant part, that:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Interest (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall spec i fy: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security

5 See Compl., at Ex. A.

6 See id.

7 See id. , at Ex. C.

8 See id. , at ¶ 5.4

Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrow of the right to reinstate after acceleration and the right to asse rt in the foreclosure proceeding the non

- existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may further demand and may for eclose this Security Instrument by judicial proceeding. 9
To date, the Bannings have not render ed payment in full. As a result, Wells Fargo

gave the Bannings 45 days’ notice of intent to foreclose on the Mortgage. 10

Wells Fargo filed its scire facias sur mortgage C omplaint on July 5, 2019

seeking foreclosure of the Banning’s interest in the property. 11 On July 30, 2019,

Wells Fargo served the Bannings with the Complaint by personally serving Sarita

Banning. 12 On August 5, 2019, the Bannings filed an initial a nswer to Wells Fargo’s

Complaint. 13 While th is answer contains responses to five of the six allegations i n

the Complaint, it also raises a number of allegations

, defenses , and counterclaims

. 14

Specifically

, it allege s a number of counterclaims related to supposed mistakes on

the Mortgage loan documents and failures on behalf of the United States Department

9 See Compl., at Ex. A at ¶ 22.

10 See Compl., at ¶ 5, Ex. D at ¶ 3.

11 Dkt. 1.

12 See Dkt. 5.

13 Dkt. 8. It is styled alternatively as an “Affidavit of Defense” and an “Opposition to the Motion of Pendency and F oreclosure Action.” See id. at 1

- 2.

14 See id. at 2

- 7.5

of Veterans Affairs

. 15 The Bannings then filed a subsequent a nswer (the “Answer”)

on September 27, 2019. 16

The parties scheduled a mediation conference for October 2, 2019. 17 At the

mediation, the Bannings indicated that they submitted a complete financial package

to be reviewed by Wells Fargo. 18 An additional mediation conference was scheduled

for November 20, 2019. 19 The mediation process was unsuccessful because the

parties failed to come to agreement. 20 Namely, the Bannings did not wish to pursue

loss mitigation. 21

On March 6, 2020, Wells Fargo filed its Motion for Summary Judgment (the

“Motion”) , arguing that the Bannings failed to plead a ny of the legally recognized

defenses in a scire facias sur mortgage action. 22 On April 30, 2020, the Bannings

filed their “Opposition and Objection to Plaintiff’s Motion for Summary Judgment”

(the “Response”), which the Court treats as the Banning’s resp onse to the Motion. 23

The Bannings claimed that there was a dispute of material fact as to numerous issues,

15 See id. at 7.

16 Dkt. 14. The Court treats this pleading as the response to Wells Fargo’s Complaint. The Answer contains updated responses to Wells Fargo’s Complaint, as well as updated allegations, counterclaims, and defenses. See id.

17 See Dkt. 13.

18 See Dkt. 15.

19 See id.

20 See Dkt. 24 at 1.

21 See id.

22 Dkt. 48 at ¶ 10.

23 Dkt. 54.6

including whether subject matter jurisdiction exists and whether permissi ve

counterclaims are permitted in a scire facias sur mortgage action. 24 On June 30,

2020, Wells Fargo filed its Reply in Further Support of Plaintiff’s Motion for

Summary Judgment” (the “Reply”). 25 The Court heard oral argument on the Motion

on October 23 , 2020. 26

III. STANDARD OF REVIEW

Under Superior Court Civil Rule 56, summary judgment “shall be rendered

forthwith” if “there is no genuine issue as to any material fact and .

. . the moving

party is entitled to a judgment as a matter of law.” 27 The moving party bears the

initial burden of demonstratin g that, even with the evidence construed in the light

most favorable to the non

- moving party, there are no genuine issues of material

24 See id. at ¶ 1, 3

- 10.

25 Dkt. 61. On May 28, 2020, the Bannings filed a Motion to Strike Plaintiff’s Response by Objection and Opposition to Defendant’s Motion to Dismiss. See Dkt. 57. Wells Fargo responded to the Banning’s motion on June 30. See Dkt . 60. While the Court noted at oral argument that it viewed the Banning’s motion to strike as a sort of sur

- reply to Wells Fargo’s June 30 Reply, see Dkt. 77 at 21, it is largely duplicative of the Banning’s initial set of summary judgment papers and as s uch, will not be addressed separately in the Court’s analysis.

26 During oral argument, the Court also heard argument on Wells Fargo’s Motion to Compel Discovery. See Dkt. 77. The Court informed the parties that it considered the summary judgment record closed as of the date of the oral argument. See id. at 21.

27 Super. Ct. Civ. R. 56(c).7

fact. 28 If the moving party meets this burden, then to avoid summary judgment

, the

non

- moving party must adduce some evidence of a dispute of material fact. 29

On an application for summary judgment, “the court must view the evidence

in the light most favorable to the non

- moving party.” 30 An application for such a

judgment must be denied if there is “ any reasonable hypothesis by which the

opposing party may recover, or if there is a dispute as to a material fact or the

inferences to be drawn therefrom.” 31 “ The test is not whether the judge considering

summary judgment is skeptical that [the non

- movant] will ultimately prevail.” 32

IV. ANALYSIS

Under Delaware law, a mortgagee has the right to initiate a scire facias sur

mortgage action

, “an in rem proceeding used to foreclose on a mortgage.” 33 A writ

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

– 81 (Del. 1979).

29 Id.

30 Merrill v. Crothall

– American, Inc. , 606 A.2d 96, 99 (Del. 1992).

31 Vanaman v. Milford Mem’l Hosp., Inc.

, 272 A.2d 718, 720 (Del. 1970).

32 Cerberus Int’l, Ltd. v. Apollo Mgmt., L.P.

, 794 A.2d 1141, 1150 (Del. 2002).

33 JPMorgan Chase Bank v. Hopkins , 2013 WL 5200520, at *2 (Del. Super. Sept. 12, 2013); see also 10 Del. C. § 5061. On March 12, 2020, Delaware Governor John C. Carney declared a state of emergency due to COVID

- 19 (“Declaration”). On June 30, the Governor again modified the Declaration, lifting any stays of deadlines in residential mortgage foreclosure actions resulting from the Declaration, “unl ess the court determines that a longer period is necessary in the interest of justice.” Twenty

- Third Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat 11 (June 30, 2020), available at https://governor.delaware.gov/wp

- content/uploads/sites/24/2020/06/Twenty

- Third

Modification

- to

- State

- of

- Emergency

- 0630 2020.pdf . Although there have been additional modifications, none have further changed the procedural requirements for8

of scire facias sur is, in essence, “a rule to show cause that requires the mortgagor

to appear and establish why the mortgagee should not be allowed to foreclose.” 34 In

this type of action, a party’s defenses are limited. 35

Wells Fargo’s claim against the Bannings is straightfor ward: no material

issues of fact are in dispute and the Bannings have failed to adequately plead any of

the legally recognized defenses in a scire facias sur mortgage action.

A. The Bannings Have Not Demonstrated that A ny Material Issues of Fact Exist

As the movant, Wells Fargo has the initial burden of demonstrating that there

are no genuine issues of material fact. In its Complaint, Wells Fargo alleges that the

Bannings are in default of their mortgage in the amount of $387,050.00 , with

interest, late charges, counsel fees, costs and all sums due or which become due

under the Mort g age and note. T he Court has reviewed all of the documents

submitted by the Bannings and cannot find anything that creates a genuine issue of

material fact as to this core claim or to a ny other material fact. Therefore

, Wells

Fargo has met its burden on this issue

.

a mortgage foreclosure action. See Restora, LLC v. Moore

, et al. , 2020 WL 7393247, at *1 (Del. Super. Dec. 16, 2020).

34 LSF9 Master Participation Tr. v. Tucker , 2017 WL 1407995, at *4 (Del. Super. Apr. 19, 2017), aff’d sub nom. Matter of El , 168 A.3d 673 (Del. 2017) (citing American Nat. Ins. Co. v. G

– Wilmington, Assoc., LLP. , 2002 WL 31383924, at *2 (Del. Super. Oct. 18, 2002))

. 35 See infra Part IV(B).9

Once the movant has met its burden, t he party opposing summary judgment

must come forward with admissible evidence, other than mere denials, showing the

existence of a genuine issue of fact

. 36 The Bannings have fail ed to do so. In their

Answer, t he Bannings den y that : (1) they failed to pay the monthly installments of

the Mortgage ; 37 and (2) they owe Wells Fargo the amount r emaining on the

Mortgage

. This alone is insufficient. Me re denials in a pleading are insufficient

under Superior Court Civil Rule 56 to oppose a motion fo r summary judgment. 38

Further

, m ost of the purported disputes of material fact raised in the Banning’s

Response are not disputes of fact at all, and instead are fashioned as legal arguments.

Therefore, no genuine issue of fact exists.

B. The Banning ’ s Permissible Scire Facias Sur Defenses are Legally Deficient

T he Supreme Court of Delaware has held that the permi ssible defenses in scire

facias sur mortgage actions are limited

. 39 In general, “ only those claims or

36 Kennedy v. Giannone , 527 A.2d 732

, 732 ( TABLE ) (Del. 1987) (citing E.K. Geyser Co. v. Blue Rock Shopping Center, Inc. , 229 A.2d 499, 501 (Del. Super. 1967)).

37 The Bannings “Denied/Admitted” in their Answer that they failed to pay the monthly installments of the Mortgage and note when due. See Dkt. 14 at ¶ 5. This does not change the analysis for purposes of summary judgment because, as noted herein, the Bannings have not met their burden on summary judgment to show a genuine issue of material fact exists for the fact finder.

38 Kennedy v. Giannone , 527 A.2d 7 32 , 732 ( TABLE ) (Del. 1987).

39 CitiMortgage, Inc. v. Kine , 2011 WL 6000755, at *2 (Del. Super. Nov. 1, 2011).10

counterclaims arising under the mortgage may be raised. ” 40 Specifically, a

defendant is limited to pleading payment
, satisfaction, or avoidance of the

mortgage. 41 A plea in avoidance must “relate to the mortgage sued upon, i.e., the

plea must relate to the validity or illegality of the mortgage documents.” 42

Avoidance defenses can include “ acts of God, assignment, conditional liability,

duress, exception, forfeiture, fraud, illegality, justification, non

- performance of

condition precedents, ratification, unjust enrichm ent and waiver. ” 43 Permissive

counterclaim s, however, may not be asserted in a scire facias sur mortgage action. 44

Here, Wells Fargo alleges that the Bannings are in default on their mortgage

in the amount of $387,050.00 with interest, late charges, counsel fees, costs

, and all

sums due or which become due under the Mortgage and note. In response, the

Bannings have assert ed a number of convoluted and conclusory allegations and

40 Id. (internal quotation omitted).

41 Shrewsbury v. The Bank of New York Mellon , 160 A.3d 471, 475 (Del. 2017).

42 CitiMortgage, Inc. v. Kine , at *2 (citing American Nat. Ins. Co. , at *3) (internal quotation omitted).

43 CitiMortgage, Inc. v. Kine , at *2; see also Windsor I, LLC v. CWCapital Asset Mgmt. LL C , 2019 WL 4733430, at *8 (Del. Super. Sept. 27, 2019), aff’d

, 238 A.3d 863 (Del. 2020).

44 Wells Fargo Bank, N.A. v. Williford , 2011 WL 5822630, at *3 (Del. Super. Nov. 17, 2011). These claims are permissive by “virtue of their nonassociation with the mortgage transaction at issue. ” Id. at *3 n.47 (citation omitted).11

counterclaims in their Answer and Response

. 45 The Bannings do not plead payment

or satisfaction

. 46

The Bannings also do not coherently assert any avoidance defenses

. 47 To the

extent any are permissible or adequately pleaded, they nevertheless fail due to legal

deficiency. The Bannings assert fraud 48 on two grounds: (1) Well Fargo fraudulently

corrected certain terms of the mortgage settlement sheet ; and (2) Wells Fargo

fraudulently asked the Bannings to sign the corrected settlement sheet in the absence

of an attorney. Neither has merit. The Banning’s first fraud

- related counterclaim

45 See, e.g., Dkt. 54 at 4

- 5 (“These items have been addressed with proof that the Settlement Statement HUD

- 1 (SSH1) has been forged, altered and changed with undeniable proof; there is nothing more respondent(s) need to comment. The fraud and concealment is evident ” ).

46 In t heir Prayer for Relief, the Bannings ask that the Court “[d]eclare mortgage, lis pendens, and note released, satisfied and fully discharged.” D kt. 54 at 7. However, this is the extent of their assertion of satisfaction in their Response and there is no

me ntion of satisfaction in their Answer.

47 Merely using the words “unjust enrichment,” “duress,” and “undue influence” and paring them with conclusory arguments lacking any legal or factual support is insufficient for purposes of summary judgment. See Deut sche Bank Nat’l Tr. Co. v. Moss , 2016 WL 355017, at *3 (Del. Super. Jan. 26, 2016), aff’d , 148 A.3d 1170 (Del. 2016). The Court rejects all non

- fraud avoidance defenses pleaded by the Bannings as they lack support in the record

. See, e.g., Dkt. 54 at 5 (“Everything respondent(s) have submitted is related to the original mortgage. Respondent(s) entered into the alleged contract based upon false representations made by the plaintiff, its agents and representative. Everything started, at the beginning

. Fraud in the inducement, negligence, unjust enrichment, breach of contract, concealment, theft, unlawful foreclosure and negligence.”)

48 The Court agrees with Wells Fargo that the Banning’s assertion that Wells Fargo breached a Wells Fargo Closing Guarantee by allegedly failing to timely close on the M ortgage
, see Dkt. 48 at 4

- 5 , is not a valid claim in this action and is not a fraud

based claim, as the Bannings suggest

. See Dkt. 14 at 8

- 9; Dkt. 54 at 4

.12

do es not relate to the validity of the original mortgage because it did not change th e

Banning’s rights under the Mortgage nor materially alter the transaction. 49 As such,

it an improper permissive counterclaim and is barred. 50

The Banning’s second fraud

- related counterclaim is legally deficient

. U nder

Delaware law, “the absence of Delaware counsel [does not operate] to invalidate, or

to render unenforceable, the underlying transaction against the mortgagors who

receive the benefit of the loan.” 51 Rather, m ortgagers “ must allege facts indicating

that the mortgagers were p rejudiced by the lack of an attorney and that they did not

understand the nature of the transactions or their resultant obligations.” 52 The

Bannings have not done so , and as such, this claim likewise fails.

49 See, e.g., Will i

ford

, at * 5

- 6.

50 See, e.g., Will i

ford

, at *6 (finding that a party’s counterclaims were “outside the scope of a plea of avoidance because they . . . do not relate to the validity or legality of the mortgage documents” themselves).

51 Capital One, N.A. v. Bachovin , 2015 WL 5968537, at *3 (Del. Super. Oct. 7, 2015) (citation omitted).

52 Id. (internal quotation and citation omitted).13

V. CONCLUSION

The undisputed record demonstrates that Wells Fargo is a valid holder of the

M ortgage, that the Bannings executed the M ortgage, that the Bannings have

defaulted on their obligation to Wells Fargo , and that the Bannings owe the amount

of the judgment sought. Wells Fargo’s motion for summary judgment is

GRANTED and the Banning’s counterclaims are DISMISSED with prejudice.

IT IS SO ORDERED.