IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JPMorgan Chase Bank, National 

Association, a national banking 

association organized and existing 

under the laws of the United States of 

America; Assignee of Mortgage 

Electronic Registrations Systems, Inc., 

as a nominee, a corporation organized 

and existing under the laws of the State 

of Delaware

Plaintiff,

v.

JOSEPH A. CUNNINGHAM, Jr. 

Personal Representative and Heir, 

HOWARD S. CUNNINGHAM, Heir, 

PAULETTE CUNNINGHAM, Heir, 

and YASMEEN CUNNINGHAM, 

Heir, 

Defendants.

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) C.A. No. N12L-11-093 CLS

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ORDER

Decided: January 19, 2018

On this 19th day of January, 2018, and upon consideration Plaintiff JPMorgan 

Chase Bank’s (“Plaintiff”) Motion for Summary Judgment and Defendant Joseph 

Cunningham’s (“Defendant”) Response thereto, the Court finds as follows: 
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1. On November 26, 2012 Plaintiff filed a scire facias sur mortgage complaint 

against Defendants seeking foreclosure of Plaintiff’s interests in 247 

Auckland Drive, Newark DE 19702 under the mortgage. 

2. Defendant elected to participate in mediation, but he did not appear at the 

mediation conference on April 17, 2013. Plaintiff’s Motion to Dismiss 

Defendant’s counterclaims was granted on June 9, 2014. Plaintiff filed a 

Motion to Amend the Complaint on September 6, 2016. The Court granted 

Plaintiff’s Motion. Plaintiff filed its Amended Complaint on January 17, 

2017. Subsequently Plaintiff filed this Motion for Summary Judgment. 

Plaintiff contends that Defendants have not plead any of the allowable 

Defenses in a mortgage action under Delaware law. 

3. Defendant Joseph Cunningham filed a Response on August 24, 2017 and a 

document filed as “Notice from Defendant” on October 11, 2017. 

4. “The defenses available in a scire facias sur mortgage foreclosure action are 

limited and only those claims or counterclaims arising under the mortgage 

may be raised. Delaware courts recognize the defenses of payment, 

satisfaction or avoidance.”1

 

1 CitiMortgage, Inc. v. Bishop, 2013 WL 1143670, at *5 (Del. Super. Mar. 4, 

2013).
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5. The Court may grant summary judgment if the moving party establishes that 

there are no genuine issues of material fact in dispute and judgment may be 

granted as a matter of law.2 All facts are viewed in a light most favorable to 

the non-moving party.3 When the facts permit a reasonable person to draw 

only one inference, the question becomes one for decision as a matter of law.4 

If the non-moving party bears the burden of proof at trial, yet “fails to make a 

showing sufficient to establish the existence of an element essential to that 

party’s case,” then summary judgment may be granted against that party.5

6. To the extent that Defendants raised any defense in their filings, this Court 

may only recognize the defense of payment, satisfaction or avoidance. The

Answer to Plaintiff’s Complaint is void of Delaware’s recognized defenses. 

Additionally, the Response to Plaintiff’s Motion, and subsequent filing, fails 

to demonstrate that there are any genuine issues of material fact. 

7. For the foregoing reasons, Plaintiff JPMorgan Bank’s Motion for Summary 

Judgment is GRANTED as to all Defendants. IT IS SO ORDERED.

/s/ Calvin L. Scott

Judge Calvin L. Scott, Jr.

 

2 Super. Ct. Civ. R. 56(c).

3 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

4 Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

5 Kennedy v. Encompass Indem. Co., 2012 WL 4754162, at *2 (Del. Super. Sept. 28, 

2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).