SUPERIOR COURT

OF THE

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse

Judge 38 The Green

Dover, DE 19901

Telephone (302)735-2111

October 5, 2016

Mr. Pedro Rivera & Antonia Castillo Daniel T. Conway, Esq.

275 Gravelly Run Branch Road Atlantic Law Group, LLC

Clayton, DE 19938 512 East Market

Georgetown, DE 19947

Submitted: September 30, 2016

Decided: October 5, 2016

Re: JP Morgan Chase Bank v. Pedro Rivera & Antonia Castillo

 K15L-09-011 JJC

Dear Mr. Rivera, Ms. Castillo & Mr. Conway:

The matter involves a mortgage foreclosure complaint filed by Plaintiff JP

Morgan Chase Bank (hereinafter “JP Morgan”) against Defendants Pedro Rivera and

Antonia Castillo (hereinafter collectively “Defendants”). Defendants filed a motion

to dismiss JP Morgan’s complaint, arguing that JP Morgan did not comply with the

requirements of 10 Del. C. § 5062A.

1 Pursuant to that section, a bank in a foreclosure

1 Subsection (b), of section 5062A, provides that

(b) No judgment may be entered in any mortgage foreclosure action

. . . unless the plaintiff has filed a fully executed affidavit asserting:

(1) That the defendant has been provided with the opportunity to

apply for relief under any loss mitigation program for which the

defendant may be eligible . . ., and
action must file a loss mitigation affidavit certifying that the bank has advised the

homeowner of available programs for modification or mitigation of the loans at issue.2

That section also provides that if certain representations in the statutorily required loss

mitigation affidavit are false, then “the foreclosure action shall be dismissed by the

court without prejudice . . . .”

3

Defendants filed the present motion to dismiss and at oral argument on the

motion alleged that the affidavit filed by JP Morgan was false. JP Morgan denied that

the representations in its affidavit were false. Accordingly, the Court held an

evidentiary hearing to determine whetherthe affidavit at issue included false statements

referencing the requirements of paragraphs (b)(1) and (b)(2) of section 5062A. The

affidavit at issue, filed by JP Morgan, tracked the section’s statutory language. In the

affidavit, Petraq Stefanllari, a Vice President at JP Morgan, attested to the fact that

Defendants were “ineligible for any applicable loss mitigation program due to the

Borrower’s failure to apply, or failure to provide required information, or failure to

complete the requirements of the program.”

4

At the hearing, Defendants introduced JP Morgan’s May 5, 2016 letter to

Plaintiff confirming that JP Morgan cancelled itsreview of potentialmortgage and loan

modifications. The reasons cited in the letterincluded that Defendants “told usthat you

(2) That the loan secured by the mortgage for the plaintiff seeks

foreclosure is:

a. Not subject to a loss mitigation program; or

b. Is ineligible for any applicable loss mitigation program due to the

defendant’sfailure to apply, or failure to provide required information,

or failure to complete the requirements of the program; or

c. Is determined by the plaintiff to be otherwise ineligible for any

applicable loss mitigation program.

2

Id. at § 5062A(a).

3

Id. at § 5062A(c).

4 Pl. Ex. No. 3.

2
no longer want to be reviewed for mortgage assistance . . .[and you] told us you don’t

want to participate in the program.”

5 Consistently with this May 5th

letter, JP Morgan

submitted a letter from Defendant Rivera to JP Morgan stating that “ I hereby order

ALL actions to be stopped . . .” which referred to the request for review for

modification under consideration at the time.6 Through JP Morgan’s witness, Frank

Dean, it also introduced a phone log that Defendants conceded was accurate. The

phone log confirmed that Mr. Rivera called JP Morgan prior to the execution of the

affidavit for a “verbal opt out” of the loss mitigation program.

7

Defendant Rivera testified at the hearing that he admits that he asked JP Morgan

to place consideration of “RMA #8" (the request for modification that was pending

immediately before JP Morgan filed the affidavit) on hold. He testified, however, that

prior to telling JP Morgan to cease work on modification matters, he had sent them a

qualified written request as provided for in the Real Estate Settlement Procedures Act

(hereinafter “RESPA”).

8 Defendants also offered the testimony of Christopher Yates,

a realtor who Defendants sought the help of during the modification process. Mr.

Yates testified that JP Morgan was not responsive enough to enable him to help the

Defendants with modification efforts.

At the hearing, Defendants seemed to no longer contest the accuracy of the

affidavit at issue. Rather, Defendants argued that because they had issued a qualified

written request for information pursuant to RESPA, everything in the mortgage

foreclosure process should have been stayed. Specifically, Defendants relied on

5

Id.

6 Def. Ex. No. 1.

7 Pl. Ex. No. 2.

8

12 U.S.C. § 2601 et seq.

3
Section 6 of RESPA

9

, without citing a remedy provision that would impact the state

mortgage foreclosure process at issue.

Here, the statute requiring the filing of a loss mitigation affidavit provides for

potential dismissal ofthe action without prejudice. Since the parties contested the truth

of the statements in the affidavit, an evidentiary hearing was necessary regarding that

narrow issue. Since the statute frames the matter as a defendant’s motion to dismiss,

the burden is on the Defendants to establish the falsity of the relevant statements in the

affidavit by a preponderance of the evidence.

After considering the testimony and evidence at the hearing, the matter before

the Court is essentially uncontested. Namely, the Court finds that Defendants, both in

writing and orally, requested that all loss mitigation matters cease. This was

substantiated by a letter from Defendant Rivera and a phone log from JP Morgan

confirming a telephone call by Defendants opting out of loss mitigation efforts.

Defendants did not contest the accuracy of these documents at the hearing. That

Defendant became frustrated at what he alleges was a lack ofresponse fromJP Morgan

does not establish the falsity of JP Morgan’s Vice President’s representations in his

affidavit. Based on the evidence presented, the Court finds that the statement in the

affidavit was truthful. Accordingly, Defendants’ motion to dismiss is DENIED.

IT IS SO ORDERED

/s/Jeffrey J Clark

Judge

9

Id. at § 2605.

4