IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOHN P. McCAFFERTY and § MELISSA A. McCAFFERTY, § No. 421, 2014 § Defendants Below, § Court Below–Superior Court Appellants, § of the State of Delaware in and § for New Castle County v. § § C.A. No. N09L-10-243 WELLS FARGO BANK, N.A., § § Plaintiff Below, § Appellee. § Submitted: September 22, 2014 Decided: December 8, 2014

Before HOLLAND , RIDGELY and VAUGHN , Justices.

O R D E R

This 8 th day of December 2014, upon consideration of the ap pellants’ opening brief and the appellee’s motion to affirm, it appears to the Court that: (1) The defendants-below/appellants, John P. McCaff erty and Melissa A. McCafferty (hereinafter “the McCaffertys”) have fil ed an appeal from a scire facias sur

mortgage action (hereinafter “mortgage foreclosure action”) brought against them by the plaintiff-below/appellee, Wells Fargo Bank, N.A. (hereinafter “Wells Fargo”). The McCaffertys seek review of the Superior Court’s opinions of January 14, 2014 and orders of February 11, 2014 an d August 1, 2014. The January 14 opinions ruled on the parties’ cross mot ions for summary judgment,2

denying summary judgment on the McCaffertys’ motion and granting summary judgment to Wells Fargo on the issue of liability. The February 11 order denied the McCaffertys’ motion for reconsideration of the January 14 opinions, and the August 1 final order awarded damages to Wells Fargo . Wells Fargo has moved to affirm the Superior Court judgment on the ground th at it is manifest on the face of the McCaffertys’ opening brief that the appeal is w ithout merit. We agree and

affirm. (2) In 2005, the McCaffertys executed a thirty-year mortgage securing a $200,000.00 loan against residential property locat ed in Claymont, Delaware. Under the terms of the mortgage, the McCaffertys pr omised to pay the loan in monthly installments. The mortgage also provided t hat if the McCaffertys defaulted, Wells Fargo could require immediate paym ent in full on the loan secured by the mortgage. (3) In 2009, Wells Fargo brought a mortgage foreclo sure action alleging that the McCaffertys had failed to pay the monthly installments required under the mortgage. In their answer to Wells Fargo’s compla int, the McCaffertys raised affirmative defenses, including “estoppel, waiver, laches and/or acquiescence,” and counterclaims, including “illegal consumer collecti on.” Later, the McCaffertys3

stipulated to a dismissal of the counterclaims afte r the parties determined that the claims were beyond the scope of the mortgage forecl osure action. 1 (4) Among other motions filed during the course of the mortgage foreclosure action, the McCaffertys filed motions “ to strike evidence” and “to compel modification agreement,” which were denied, and a motion to dismiss, claiming that Wells Fargo lacked standing to bring the action. At a hearing on July 3, 2013, and in an order of the same date, the Supe rior Court denied the motion to

dismiss. (5) In December 2013, the parties filed cross motio ns for summary judgment. After a hearing on January 10, 2014, the Superior Court issued an opinion on January 14, 2014, denying the McCafferty s’ summary judgment motion. The Superior Court concluded:

[A]lthough [the McCaffertys] assert that an alleged “HAMP modification agreement” is controlling, [they ] have not produced evidence of such an agreement and have not asserted any permissible defenses in the scire facias sur

mortgage action arising from the Mortgage. Because the parties have not entered into any modification agreements, the Mortgage remains valid and enforceable as a matter of law.

1 After stipulating to the dismissal of the counterc laims in the in rem mortgage foreclosure action, the McCaffertys filed an in personam complaint alleging breach of contract, unfair and deceptive business practice, negligence/gross negli gence, and unjust enrichment against Wells Fargo and Federal Home Loan Mortgage Corporation. McCafferty v. Wells Fargo Bank , Del. Super., C.A. No. N13C-07-042. The case is pending in the Superior Court.4

In a separate opinion issued the same date, the Sup erior Court granted summary judgment to Wells Fargo on the issue of liability. The Superior Court concluded:

Based on the facts and circumstances, there is no g enuine issue of material fact concerning the validity of t he Mortgage, its enforceability, [the McCaffertys’] br each, or [Wells Fargo’s] entitlement to accelerate the ba lance and proceed with foreclosure. While [the McCaffert ys] raise a number of allegations to challenge summary judgment, [they] have not proved the existence of a ny material issues of fact nor have they pled any perm issible defenses in the scire facias sur mortgage action. (6) On January 28, 2014, the McCaffertys filed a mo tion seeking reconsideration of the Superior Court’s January 14 opinions. By order dated February 11, 2014, the Superior Court denied the mo tion for reconsideration as untimely under Superior Court Civil Rule 59 and as without merit. (7) The Superior Court then referred the issue of d amages to a Commissioner. After briefing and an inquisition he aring, the Commissioner issued an order on June 23, 2014, awarding $290,538.71 in damages to Wells Fargo. Neither party filed objections to the Commissioner’ s order. Upon review of the order, the parties’ briefs and the transcript of th e inquisition hearing, the Superior Court entered final judgment on August 1, 2014 in t he amount of $290,538.71. This appeal followed. (8) In a mortgage foreclosure action, a mortgagor m ust establish why the mortgaged property should not be seized and sold to pay the mortgagor’s5

indebtedness. 2 A mortgagor’s defenses in a mortgage foreclosure action are limited to defenses to the mortgagor’s obligations under the mortgage. 3 Stated another way, a defense that does not relate to the mortgage is not properly raised in a mortgage foreclosure action. 4 (9) We review the Superior Court’s grant or denial of a summary judgment motion de novo

. 5 On a motion for summary judgment, the moving part y must demonstrate that there are no genuine issues o f material fact and that the movant is entitled to judgment as a matter of law. 6 (10) On appeal, the McCaffertys have raised a numbe r of claims that they pursued without success in the Superior Court. Wel ls Fargo contends that summary affirmance on appeal is appropriate because the McCaffertys’ claims before this Court, as in the Superior Court, have n o bearing on the entry of summary judgment, which was based on the McCafferty s’ default under the

mortgage.

2 10 Del. C. § 3901.

3 See Brooks v. BAC Home Loans Servicing , 2012 WL 3637238 (Del. Aug. 23, 2012) (citing Gordy v. Preform Bldg. Components, Inc. , 310 A.2d 893, 895 (Del. Super. 1973) (providing t hat defenses to a foreclosure action are limited to pay ment, satisfaction, absence of seal, or a plea in avoidance of the deed))).

4 See Harmon v. Wilmington Trust Co. , 1995 WL 379214 (Del. June 19, 1995) (citing Gordy v. Preform Bldg. Components, Inc. , 310 A.2d 893, 896 (Del. Super. 1973)).

5 ConAgra Foods Inc. v. Lexington Ins. Co. , 21 A.3d 62, 68 (Del. 2011).

6 Del. Super. Ct. Civ. R. 56(c).6

(11) The McCaffertys claim that Wells Fargo lacked standing to bring the mortgage foreclosure action. The Superior Court de nied the claim on July 3, 2013, ruling that Wells Fargo, as record holder and mortg agee, had standing to bring the mortgage foreclosure action. The Superior Court re iterated the July 3, 2013 ruling in the January 14 opinion granting summary judgment , stating that Wells Fargo “has standing to initiate and pursue this foreclosu re action pursuant to 10 Del. C. § 5061 and the Mortgage itself,” which was “duly reco rded.” Having considered the parties’ positions on appeal, we agree that Wells F argo had standing to bring the mortgage foreclosure action and conclude that the M cCaffertys’ claim to the contrary is without merit. (12) The McCaffertys claim that Wells Fargo was pre cluded from bringing

the foreclosure action because it made an oral offe r to modify the repayment terms of the loan secured by the mortgage. In the Januar y 14 opinions, however, the Superior Court concluded otherwise, finding that th ere was no agreement to modify the mortgage, and that the mortgage remained “valid and enforceable as a

matter of law.” The court further determined that the parties’ post-default negotiations were not a valid defense in the mortga ge foreclosure action, because the negotiations did not concern the validity or le gality of the mortgage documents. On appeal, the McCaffertys have not demonstrated ma terial issues of fact supporting their claim that the parties agreed to a modification of the repayment7

terms or that the existence of such an agreement wa s a valid defense to the mortgage foreclosure action. (13) Finally, the McCaffertys claim that they were denied their statutory right to mediation. When granting summary judgment , the Superior Court noted that the McCaffertys were not eligible for mediation under the statute because Wells Fargo’s mortgage foreclosure action was filed in October 2009, pre-dating the mediation statute, which was codified in 2011. Moreover, the Superior Court noted that “there [was] no indication from [the McC affertys] (or otherwise) that they elected to enter the Mediation Program pursuan t to Superior Court Administrative Directive 2009-3,” which governed mo rtgage foreclosures filed after September 2009. On appeal, we can discern no error in the Superior Court’s rejection of the McCaffertys’ claim that they were entitled to and denied

mediation. 7

NOW, THEREFORE, IT IS ORDERED that the motion to af firm is GRANTED. The judgment of the Superior Court is AFF IRMED.

BY THE COURT: /s/ Henry duPont Ridgely Justice

7 See 10 Del. C. § 5602C (codifying Residential Mortgage Foreclosure Mediation Program) (originally enacted Sept. 21, 2011)); Administrativ e Directive of the Superior Court, No. 2013-2 (May 28, 2013) (providing that Administrative Direc tive No. 2009-3 remains in effect and governs foreclosure actions filed prior to the effe ctive date of 10 Del. C. § 5602C) (available at http://courts.delaware.gov/Superior/pdf/Administrat ive_Directive_2013_2.pdf)).