IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

Federal National Mortgage ) 

Association (“FNMA”) )

)

Plaintiff, )

)

v. ) C.A. No. N13L-11-020 VLM

 )

LaDon Terry-Graham and )

Emory L. Graham )

)

)

Defendants, )

Date Submitted: October 16, 2015

Date Decided: October 22, 2015

COMMISSIONER’S REPORT AND RECOMMENDATION ON

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

AND

DEFENDANT’S MOTION FOR DEFAULT JUDGMENT

Melanie Thompson, ATLANTIC LAW GROUP, LLC, 913 N. Market Street, Suite 

1011, Wilmington, DE 19801, Attorney for Plaintiff.

LaDon Terry-Graham, 224 Remi Drive, New Castle, DE 19720, Defendant.

Emory L Graham, 224 Remi Drive, New Castle, DE 19720, Defendant.

MANNING, Commissioner
2

Before the Court is Plaintiff’s Motion for Summary Judgment and 

Defendant’s Motion for Default Judgment. Federal National Mortgage 

Association (“FNMA”) filed its motion on June 24, 2015, and Defendant filed her 

motion on July 22, 2015. A hearing was held on the respective motions on 

October 16, 2015.1

After fully and thoroughly reviewing the parties’ respective positions, I have

determined that the issues presented may be decided on the present record. For the 

reasons that follow, pursuant to Super Court Civ. Rule 132(a)(4), I recommend that 

Plaintiff’s Motion for Summary Judgment be granted and Defendant’s Motion for 

Default Judgment be denied.

FACTS

On November 5, 2013, Plaintiff filed a scire facias sur mortgage complaint 

against Defendants seeking foreclosure of Plaintiff’s interest in the property,

commonly known as 224 Remi Drive, New Castle, Delaware 19720 under the 

mortgage referenced in the complaint.

The Mortgage provides that upon the failure of Defendants to pay when due 

any obligation or any portion thereof when due, the loan shall be in default and 

Plaintiff, after notice and opportunity to cure, may accelerate the sum secured by 

the Mortgage and may foreclose upon the Property for the collection of the 

 1 Emory Grahm was not present at the hearing. According to LaDon Graham, Mr. Graham abandoned the property 

in question and no longer lives with her. 
3

obligation together with the costs of suit and attorney’s fees plus all sums 

expended in preservation of the property and Plaintiff’s security.2

Presently, there have been two assignments of the mortgage. Both 

assignments were properly filed with the recorder of deeds.3

 Counsel for Plaintiff 

asserts that FNMA possesses the “wet ink” note and mortgage and there is a 

certified copy of it on file with the recorder of deeds.4

It is undisputed that Defendant stopped payment on the property around 

September 1, 2012. However, Defendant has continued to and currently does 

occupy the residence. After Defendant stopped payment on the property, the 

mortgage went into default. The notice of default and an acceleration demand 

were sent to Defendant’s address.

5

 The default notice provided Defendant with 

notice that she was behind on her mortgage payment. Subsequently, an 

acceleration demand was sent to Defendant. The acceleration demand stated that 

Defendant stopped paying on the mortgage for the certain period of time and as a 

result, Defendant is in default. Therefore, under the mortgage that Defendant 

signed, because Defendant stopped payment, the entire amount of the mortgage 

was due. The total relief sought by Plaintiff now totals $510,420.80

 

2 Plaintiff’s Motion for Summary Judgment, ¶2 3 Hearing Transcript at 17.

4 Id. at 18. 5 Id. at 19.
4

PROCEDURAL HISTORY

Plaintiff brought suit against Defendants on November 5, 2013, seeking 

foreclosure of Plaintiffs interest in the property owned and occupied by 

Defendants. 

On November 18, 2013, Defendants were served with the Complaint.6 

Rather than file an answer to the original complain, Defendant LaDon TerryGraham filed a Motion to Dismiss Plaintiff’s Complaint on December 4, 2013. 

The Court held a hearing and subsequently denied Defendant’s motion on February 

11, 2014.7

 Notably, Defendant filed an answer, generally denying all of the 

allegations of the Complaint, but not until February 25, 2015. Plaintiffs now seek 

to have Defendant’s Answer stricken and for the Court to enter summary judgment 

in Plaintiff’s favor.

On July 22, 2015, Defendant LaDon Terry-Graham filed a Motion for 

Default Judgment against Plaintiff. Defendant based her Motion upon Plaintiff’s 

failure to reply to Defendant’s Answer and Affirmative Defenses. It should be 

noted that Defendant Emory Graham has yet to appear throughout this litigation

despite being properly served with the original complaint personally.

 6 Plaintiff’s Motion for Summary Judgment, ¶ 3. 7 Id. at ¶ 6 .
5

STANDARD OF REVIEW

The Court’s principal function when considering a motion for summary 

judgment is to examine the record to determine whether genuine issues of material 

fact exist.8

 Summary judgment will be granted if, after viewing the record in a 

light most favorable to a non-moving party, no genuine issues of material fact exist 

and the moving party is entitled to judgment as a matter of law.9

 If, however, the 

record reveals that material facts are in dispute, or if the factual record has not been 

developed thoroughly enough to allow the Court to apply the law to the factual 

record sub judice, then summary judgment will not be granted.10

The Court’s function is not to weigh the evidence or to accept that which 

appears to have greater weight.11 Summary judgment is not appropriate when the 

Court determines that it does not have sufficient facts in the record to enable it to 

apply the law to the facts before it.12

When deciding a motion for default judgment, when a party against whom a 

judgment for affirmative relief is sought has failed to appear, plead or otherwise 

 8 Super.Ct.Civ.R. 56(c); Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 

(Del.Super. 1973).

9 Id.

10 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).

11 Oliver B. Cannon & Sons, Inc., 312 A.2d at 325.

12 Savor, Inc. v. FMR Corp. and Upromise, Inc., 2003 WL 21054394 (Del.Super. 2003).
6

defend as provided by these Rules, and that fact is made to appear, judgment by 

default may be entered.13

ANALYSIS

The facts before the Court, as gleaned from the argument of counsel and 

Defendant at the hearing on October 16, 2015, including the pleading and exhibits, 

make it clear that there is no genuine issue of material fact regarding the alleged 

dispute; therefore, summary judgment for Plaintiff is appropriate. The terms of the 

agreement, made between Defendant and American Bank (mortgage lender) are 

clear. Defendant was required to make payments under the mortgage agreement. 

If Defendant failed to make such payments, the entity that had interest in the 

property, in this case FNMA, had the right to accelerate the sum secured by the 

Mortgage and thereafter foreclose upon the property for the collection of the 

obligation together with the costs of suit and attorney’s fees plus all sums 

expended in preservation of the property and Plaintiff’s security.

Defendant does not deny that she failed to make payments on the mortgage 

beginning around September 1, 2012. Because Defendant failed to make the 

payments, as required by the mortgage agreement, Plaintiff sent Defendant a notice 

that she was in default. Subsequently, Defendant was notified that because she 

was in default, Plaintiff was accelerating the mortgage and the entire amount was 

 13 Super. Ct. Civ. R. 7(a).
7

due under the mortgage agreement. As of this date, Defendant has yet to make a 

payment on the mortgage subsequent to September 1, 2012. 

As evidenced by Plaintiff’s Exhibits, all relevant documents were properly 

filed with the recorder of deeds, including both assignments of the mortgage. 

Plaintiff has submitted to the Court all relevant documents showing the validity of 

the original note, the validity of the mortgage that was filed with the recorder of 

deeds and subsequent assignments to the banks that hold the assignments. 

Therefore, both assignments to the mortgage are valid. As the assignment applies 

to the mortgage and note, Plaintiff has standing to bring this action and may 

enforce the assignment. 

In her Answer, Defendant lists several affirmative defenses. Historically, a 

defendant may rely upon several limited affirmative defenses.14 The defenses 

include payment, satisfaction, or avoidance of the mortgage.15 A plea in avoidance 

must relate to the validity of the mortgage documents.16 Here, Plaintiff has made

arguments questioning the existence of the “wet ink” mortgage and note and the

improper assignment of the mortgage. Neither argument is support by any 

affirmative evidence—rather; the arguments are merely unsupported conclusory 

allegations. Additionally, the Delaware Supreme Court, in Deutsche Bank Nat. 

 14 Wells Fargo Bank, N.A. v. Nickel, 2011 Del. Super. LEXIS 544, *4.

15 Id.

16 Id.
8

Trust Co. v. Moss, ruled that a defendant lacks standing to contest an assignment 

where the defendant, as mortgagee-debtor, is neither a party nor a third-party 

beneficiary of the assignment.

17 In this case, Defendant is neither, therefore she 

lacks standing to challenge even an improper assignment. Unfortunately for 

Plaintiff, the law is clear that an unsupported defense does not, by itself, raise a 

genuine issue of material fact.18 There is no dispute about the validity of the 

documents provided by Plaintiff or the debt owed by Defendant. As a result, 

Plaintiff is entitled to summary judgment as a matter of law.

Finally, Defendant’s Motion for Default Judgment should be denied. 

Defendant asserts that she is entitled to default judgment because Plaintiff failed to 

reply to Defendant’s Answer and Affirmative Defenses. It should be noted that no 

reply or response is required or permitted, pursuant to Superior Court Rule 7(a).19 

Rule 7(a) states:

There shall be a complaint and an answer; a reply to a 

counterclaim denominated as such; and answer to a cross-claim, 

if the answer contains a cross-claim; a third-party complaint, if a 

person who was not an original party is served under provision 

of Rule 14; and a third-party answer, if a third-party complaint is 

served. No other pleading shall be allowed, except that the 

Court may order a reply to an answer or a third-party answer.

20 

 17 99 A.3d 226 (Del. 2014) (TABLE), 2014 WL 2918227 (Del. Jun. 24, 2014). 18 See JP Morgan v. Smith, 2014 WL 7466729, at *2 (Del. Super., December 15, 2014).

19 Super. Ct. Civ. R. 7(a).

20 Id. (emphasis added).
9

As a result, Defendant’s Motion for Default Judgment is without merit and should

be denied.

CONCLUSION

For the reasons set forth herein, Plaintiff’s Motion for Summary Judgment 

should be GRANTED and Defendant’s Motion for Default Judgment should be 

DENIED.

IT IS SO RECOMMENDED.

 /s/ Bradley V. Manning

BRADLEY V. MANNING, 

 Commissioner

oc: Prothonotary

cc: Defendant