IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWA RE
IN AND FOR SUSSEX COUNTY

) ) CAPITAL ONE BANK (USA), N.A., ) ) Plaintiff, ) v. ) C.A. No. CPU6-13-000334 ) ) ) LINDA M. KELLY, ) ) Defendant, )

Submitted February 19, 2014 Decided April 7, 2014 Seth H. Yeager, Esquire, Attorney for Plaintiff Defendant Linda M. Kelly, **pro se**

DECISION ON APPEAL FROM COMMISSIONER’S RECOMMENDATI ON Capital One Bank (USA), N.A., (hereinafter “Plainti ff”) appeals the Commissioner’s Proposed Findings of Fact and Recomm endation (hereinafter “Recommendation”) on its Motion for Summary Judgmen t in favor of Linda M. Kelly (hereinafter “Defendant”). Following a careful revi ew of the record and submissions by the parties, the Court rejects the Commissioner’s R ecommendation for the reasons set
forth herein.Procedural History

Plaintiff initiated the above-docketed breach of co ntract action against Defendant, on April 1, 2013, seeking to collect a c redit card debt in the principal amount of $6,716.21. 1 On May, 28, 2013, Defendant filed an Answer gener ally denying the debt
with attached exhibits. On July 11, 2013, Plaintiff filed its Motion for Su mmary Judgment. The hearing was initially scheduled for September 5, 2013. Defe ndant was promptly mailed notice thereof. On August 4, 2013, the Court requested a c ontinuance on the matter. 2 On September 10, 2013, Defendant was noticed of the re scheduled motion. Despite the advanced notice of nearly two months, Defendant fai led to attend the November 7, 2013 motion hearing. Additionally, Defendant failed to c ontact the Court regarding her absence or otherwise respond to Plaintiff’s motion. At the November 7, 2013 hearing, Plaintiff argued t he merits of the summary judgment motion in lieu of requesting a judgment fo r default which the Court would have entertained. Thereupon, Commissioner reserved decision. Two months later, on January 13, 2014, the Commissioner issued a report recommending that Plaintiff’s Motion for Summary Judgment be denied. Plaintiff fi led its timely appeal of the

1 It should be noted that Plaintiff’s caption does n ot comply with our Court’s guidelines as promulgate d in Administrative Directive 2012-2. Defendant has n ot raised this issue, and the Court will not addres s it, **sua spont** e, at this stage in the proceedings. 2 Per the docket, Defendant was notified of the cont inuance by phone.Commissioner’s Recommendation on January 22, 2014. Defendant has not responded

to the appeal. Standard of Review Summary judgment is a case-dispositive determinat ion. When reviewing a commissioner’s recommendation on a case-dispositive determination, the judge reviews
the decision **de novo.** A judge may accept, reject, or modify in whole or in part the findings or recommendations made by a commissioner. 3
Discussion In reviewing a motion for summary judgment: the cou rt must be mindful; the court should proceed with caution; and the court “m ay [ ] deny summary judgment in a
case where there is a reason to believe that the be tter course would be to proceed to a
full trial.” 4 Herein, there is no reason to conclude that procee ding to a full trial is the
better course. Court of Common Pleas Civil Rule 56(c) states, in p ertinent part, that,“[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, show that there is no genuine issue as to any material fact a nd that the moving party is entitled to a judgment as a matter of law.” 5

3 Ct. Com. Pl. Civ. R. 112(A)(4)(iv). 4 **Cerberus Int'l, Ltd. v. Apollo Mgmt., L.P.** , 794 A.2d 1141, 1150 (Del. 2002). 5 **Id**

.The moving party bears the initial burden of showi ng the absence of a genuine

issue of material fact. 6 In the case **sub judice** , Plaintiff’s motion is properly supported by competent and admissible evidence. Plaintiff’s nota rized affidavit swears to Defendant’s default and the amount in controversy. The account statements evidence the sum claimed and account delinquency. The Capita l One Customer Agreement evidences the parties’ contract. Moreover, the cert ification of the motion by Plaintiff’s attorney attests to the veracity of his client’s cl aim. 7 Based on these filings, the Court
finds that Plaintiff has met its initial burden. Such a showing by the moving party does not end the Court’s inquiry. Rather, if the moving party’s motion is properly supported, as it is here, the burden shifts to the non-moving or adverse party to demonstrate a genuin e issue of material fact. 8 Court of Common Pleas Rule 56(c) states, in pertinent part, that “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavit or as otherwise prov ided in this Rule, must set forth specific facts showing that there is a genuine issu e for trial. If the adverse party does not

6 **Moore v. Sizemore** , 405 A.2d 679, 680 (Del. 1979). 7 The Court finds the Superior Court’s decision, **In re Asbestos Litigation** , 1994 WL 721774 (November 4, 1994) (Gebelein, J.), to be instructive on this mat ter. “By the certification of defendant’s attorney, the Court holds that defendant-movant has ‘pointed out’ to the Court the non-existence of a genuine issue for trial. The Court has little cause to doubt the cert ification made by counsel. He is an officer of the court and as such, charged with the duty of candor to the Court. If a certification is made in bad faith, th e Court may, **sua sponte** or upon motion by the adverse party, impose sancti ons against the attorney.” **Id** . at *2. 8 **Moore** , 405 A.2d at 680.so respond, summary judgment, if appropriate, shall be entered against the adverse

party.” 9 It bears repeating that Defendant, who bore the bur den, failed to respond to the motion. Further, Defendant failed to attend the mot ion hearing, failed to contact the Court regarding her absence and failed to respond t o Plaintiff’s appeal. Based upon Defendant’s apparent refusal to defend herself in t his action, the Court is inclined to
find that Defendant has abandoned her defense and t o consider the facts as stated in Plaintiff’s motion as undisputed. 10 Nevertheless, the Court will review Defendant’s onl y submission to the Court to ensure that no genuine issue of material fact exist s. Defendant’s May 28, 2013 Answer to the Complaint generally denies the claim. Attached to the Answer are six exhibits which Defendant did not support with any argument o r explanation as to how or why
the documents are relevant. 11

9 **Id**

. 10 The Court notes that pursuant to the federal summa ry judgment rule, “if a party fails to properly support an assertion of fact or fails to properly a ddress another party’s assertion of fact as require d by Rule 56(c), the court may...consider the fact undispu ted for purposes of the motion [and] grant summary judgment if the motion and supporting materials — i ncluding the facts considered undisputed — show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). 11 Defendant’s exhibits include the following document s: 1. Defendant’s paystub for the pay period ending Janua ry 29, 2011. In her list of exhibits Defendant identifies this as her “last paycheck”; 2. Capital One statement showing payment for protectio n plan dated January 21, 2012; 3. Letter to Defendant denying request for coverage un der the payment plan dated March 15, 2012; 4. Permanent Disability Benefit Activation Form dated December 15, 2012;In viewing the exhibits in the light most favorable to Defendant, the Court **infers**

that upon filing her Answer, Defendant believed tha t she was entitled to coverage under a payment protection plan which would make pa yments on the account in the event of unemployment or disability. The record ref lects that Defendant applied for coverage under the plan twice and was denied both t imes. 12 Defendant’s first application for protection was denied because the d ate of loss pre-dated her purchase of the protection plan. 13 As to her second application for benefits, Defenda nt was denied because the protection plan lapsed when her account became delinquent. 14 Defendant’s exhibits show that she paid for and, th en, applied for payment protection under conditions that were outside the p rotection plan. Although this occurrence may confuse or frustrate the Defendant, it by no means demonstrates the need for a trial. Moreover, the Court will not draw unreasonable or unfounded
inferences from the evidence in favor of the Defend ant. 15

5. Letter to Defendant denying request for coverage un der the payment plan dated January 23, 2013; and 6. The Payment Protection Agreement between the parti es. 12 **See** Defendant’s Exhibits “3” and “5”. 13 Defendant became unemployed a full year before the protection plan was in effect. **See** Defendant’s Exhibits “1” and “3”. 14 The protection plan policy lapsed after Defendant failed to make payment on her account for several months. **See** Defendant’s Exhibits “4” and “5”; **See also** Exhibit “B” of Plaintiff’s Motion for Summary Judgment, dated July 11, 2013. 15 “[T]here is no issue for trial unless there is suf ficient evidence favoring the nonmoving party for a jury to return a verdict for that party...If the evidence is **merely colorable, or is not significantly probative ,**  summary judgment may be granted. We similarly have explained that we will not draw “unreasonable inferences” in the nonmoving party's favor. **Health Solutions Network, LLC v. Grigorov** , 12 A.3d 1154 (Del. 2011)(citations and quotations omitted).While the Court appreciates the challenges that Def endant faces in representing

herself in this action, those challenges are far fr om insurmountable and cannot justify Defendant’s failure to participate in the litigatio n process. “All judges are sympathetic to the problems faced by **pro se** litigants. But the problems and perils faced by **pro se** litigants [do] not mean that a separate set of rule s should be applied when a person is not represented by an attorney.” 16 Upon **de novo** review, the Court finds that the record demonstrate s that no genuine issue of material fact exists and Plaintiff is entitled to summary judgment as a matter of law. Therefore, Plaintiff’s Appeal from C ommissioner’s Findings of Fact and
Recommendation is GRANTED . Plaintiff is awarded its full damage claim of $6, 716.21 and post-judgment interest at the legal rate.
IT IS SO ORDERED this 7th day of April, 2014.

___________________________________

The Honorable Rosemary B. Beauregard

16 **LaBarge v. Hensley** , 2006 WL 306925 (Del. Super. 2006).