Opinion
C.A. No. 04L-07-006.
Submitted: February 7, 2005.
March 9, 2005.
Thomas D. Barnett, Esquire, Law Office of Thomas D.H. Barnett, Georgetown, DE.
Bradley S. Eaby, Esquire, Barros McNamara Malkiewicz and Taylor, Dover, DE.
Dear Counsel:
Carl and Bridget Herbst (hereinafter "Defendants") executed a mortgage agreement with Principal Residential Mortgage, Inc. and its nominee Mortgage Electronic Registration Systems, Inc. in June 2001. The mortgage agreement covered real property located at 24569 Pie Lane, Georgetown, Delaware, 19947. In October 2003, the Defendants filed for bankruptcy under Chapter 7 of the Bankruptcy Code. The Plaintiff sought a Motion for Relief from Stay under Section 362 of the Bankruptcy Code. The hearing for the motion was set for January 22, 2004. Before the hearing occurred, the parties met and determined that recent payments by the Defendants to the Plaintiffs exceeded their mortgage obligations through February 2004 . The Plaintiff then withdrew its motion. The parties agreed to apply the overpaid funds to subsequent mortgage payments.
After the Plaintiff withdrew its motion, several miscommunications occurred between the parties. At some point, the Plaintiff began to refuse further payment from the Defendants as agreed previously. On September 7, 2004, the Defendants requested a current mortgage reinstatement figure from the Plaintiffs. The Plaintiff responded with a $9,460.38 figure representing what they claim as Defendant's outstanding arrearages. The Plaintiff has since amended this figure to $8,003.71, crediting the Defendants with formerly unaccounted payments. The Defendants dispute the accuracy of this figure, claiming that the Plaintiff failed to negotiate payments already provided by the Defendants.
The Defendants submitted a Motion for Summary Judgment requesting that this Court set the reinstatement figure at $4,451.05, order the Defendants to pay the Plaintiff said amount, and dismiss the Plaintiff's foreclosure complaint.
The Plaintiffs object to the Summary Judgment motion because they contend a genuine issue of material fact exists in the disparity between the amounts proffered by each party.
According to Superior Court Civil Rule 56(c), summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court must view the record in a light most favorable to the non-moving party, and if it finds that there are no material issues of fact therein, it may grant a motion for summary judgment. First, the burden is on the moving party to show that there are no material issues of fact. The burden then shifts to the non-moving party to demonstrate what material issues of fact exist.
See Sup. Ct. Civ. Rule 56(c).
See Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
See id.
The disparity between the amounts proffered by each party totals $3,552.66. This Court agrees with the Plaintiff that the amount in dispute is a genuine issue of material fact. The Court is unable to grant the Defendant's motion for summary judgment when a clear factual issue remains unresolved. The parties should be permitted to advance and present their claims in detail. For the foregoing reasons, the motion is DENIED.