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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WELLS FARGO BANK, NA,

Plaintiff,

v. 

SARITA M. BANNING and

WILLIAM C. BANNING, JR., 

Defendants.

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) C.A. No. N19L-07-016 MAA 

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Submitted: October 23, 2020

Decided: January 21, 2021

Upon Plaintiff’s Motion for Summary Judgment: 

GRANTED

MEMORANDUM OPINION

Seth A. Niederman, Esquire (Argued), and Katelyn M. Crawford, Esquire of FOX 

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.
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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 brought 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 an 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 13-15. 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.”).
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Upon consideration 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 mortgage 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 specify: (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.
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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 assert 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 foreclose this Security Instrument by 

judicial proceeding.9

To date, the Bannings have not rendered 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 Complaint 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 answer to Wells Fargo’s 

Complaint.13 While this answer contains responses to five of the six allegations in 

the Complaint, it also raises a number of allegations, defenses, and counterclaims.

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Specifically, it alleges 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 Foreclosure Action.” See id. at 1-2. 

14 See id. at 2-7. 
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of Veterans Affairs.

15 The Bannings then filed a subsequent answer (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 any 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 response 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.
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including whether subject matter jurisdiction exists and whether permissive

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 demonstrating 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 such, 

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).
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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, “unless 

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-ThirdModification-to-State-of-Emergency-06302020.pdf. Although there have been 

additional modifications, none have further changed the procedural requirements for 
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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 straightforward: 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 Any 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 Mortgage and note. The 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 any 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). 
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Once the movant has met its burden, the 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 failed to do so. In their 

Answer, the Bannings deny that: (1) they failed to pay the monthly installments of 

the Mortgage;

37 and (2) they owe Wells Fargo the amount remaining on the 

Mortgage. This alone is insufficient. Mere denials in a pleading are insufficient 

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

Further, most 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

The Supreme Court of Delaware has held that the permissible 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 732, 732 (TABLE) (Del. 1987). 

39 CitiMortgage, Inc. v. Kine, 2011 WL 6000755, at *2 (Del. Super. Nov. 1, 2011).
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counterclaims arising under the mortgage may be raised.”

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 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 enrichment and waiver.”

43

 Permissive 

counterclaims, 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 asserted 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. LLC, 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). 
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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 fraud48 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 their Prayer for Relief, the Bannings ask that the Court “[d]eclare mortgage, lis 

pendens, and note released, satisfied and fully discharged.” Dkt. 54 at 7. However, 

this is the extent of their assertion of satisfaction in their Response and there is no 

mention 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 Deutsche 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 Mortgage, see Dkt. 48 at 4-5, is not a valid claim in this action and is not a fraudbased claim, as the Bannings suggest. See Dkt. 14 at 8-9; Dkt. 54 at 4. 
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does not relate to the validity of the original mortgage because it did not change the 

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. Under 

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, mortgagers “must allege facts indicating 

that the mortgagers were prejudiced 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., Williford, at *5-6. 

50 See, e.g., Williford, 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). 
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V. CONCLUSION

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

Mortgage, that the Bannings executed the Mortgage, 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.