Opinion
C.A. No. K16L-06-039 RBY
03-30-2017
NATIONSTAR MORTGAGE, LLC, Plaintiff, v. ROY E. PARKER and TAMMY L. GENNA, Defendants.
Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff. Roy E. Parker, III, Pro se. Melissa L. Dill, Esquire, Liguori & Morris, Dover, Delaware for Tammy L. Genna, Defendant.
Upon Consideration of Plaintiff's Motion for Summary Judgment
GRANTED
ORDER
Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff. Roy E. Parker, III, Pro se. Melissa L. Dill, Esquire, Liguori & Morris, Dover, Delaware for Tammy L. Genna, Defendant. Young, J.
SUMMARY
Nationstar Mortgage, LLC ("Plaintiff") filed this Motion for Summary Judgment against Roy E. Parker and Tammy L. Genna ("Defendants") in a scire facias sur mortgage action. Plaintiff has met its summary judgment burden by demonstrating that there is no genuine issue of material fact. Defendants have not met their summary judgment burden of showing that there are genuine issues of material fact. Plaintiff is entitled to judgment as a matter of law. Thus, Plaintiff's motion is GRANTED.
FACTS AND PROCEDURE
On July 31, 2013, Defendant Roy E. Parker executed and delivered a mortgage to Cape Bank for a property in Camden Wyoming, Delaware. Plaintiff asserts that this mortgage was eventually assigned to it. Plaintiff further asserts that Defendants have failed to pay the monthly installments of the mortgage when due.
Plaintiff demanded that Defendants make their mortgage payments in a demand letter dated November 17, 2015, indicating that acceleration of the sum secured by the instant mortgage was proper in this instance. To date Defendants still have not cured the alleged default.
Plaintiff filed the Complaint on June 15, 2016. On February 14, 2017, Plaintiff filed a Motion for Summary Judgment. Defendants did not respond to the motion.
STANDARD OF REVIEW
Summary judgment is appropriate where the record exhibits no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. This Court shall consider the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" in deciding the motion. The moving party bears the initial burden of demonstrating the nonexistence of material issues of fact. The burden then shifts to the nonmoving party to show that there are material issues of fact in dispute. The Court views the record in the light most favorable to the nonmoving party. When material facts are in dispute, or "it seems desirable to inquire more thoroughly into the facts, to clarify the application of the law to the circumstances," summary judgment will not be appropriate. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. May 22, 1997).
Del. Super. Ct. Civ. R. 56(c).
Fauconier v. USAA Cas. Ins. Co., 2010 WL 847289, at *2 (Del. Super. Mar. 1, 2010).
Id.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. Aug. 6, 1979).
Sztybel v. Walgreen Co., 2011 WL 2623930, at *2 (Del. Super. June 29, 2011).
Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
DISCUSSION
Plaintiff has provided evidence demonstrating that there are no genuine issues of material fact, and that it is entitled to judgment as a matter of law. Further, it maintains that Defendants have not asserted a defense allowed in a scire facias sur mortgage action.
Plaintiff has satisfied its summary judgment burden of showing that there is no genuine issue of material fact. To prove its scire facias sur mortgage claim, Plaintiff must show that it is a valid holder of the mortgage and that Defendants did not fulfill their obligations under the mortgage. In Deutsche Bank National Trust Company v. Bishop, a plaintiff met its summary judgment burden in a scire facias sur mortgage action by showing that it was assigned the relevant mortgage and that the defendant failed to pay the mortgage according to its terms. Similar to Deutsche Bank, Plaintiff has demonstrated these facts. The record contains an affidavit indicating that the principal balance, interest, escrow advances, property inspections, foreclosure fees, and foreclosure costs are justly due and owed to Plaintiff. Further, the record includes a demand letter indicating that Defendants did not pay the mortgage according to its terms.
Deutsche Bank Nat'l Trust Co. v. Bishop, 2015 WL 5768942, at *1 (D. Del Sept. 30, 2015).
Id. at *3. --------
Defendants have failed to satisfy their summary judgment burden to show that there are material issues of fact in dispute. They have not filed a response to Plaintiff's Motion for Summary Judgment. The facts permit a reasonable person to draw but one inference: that Plaintiff is entitled to summary judgment.
CONCLUSION
The facts that Plaintiff demonstrated satisfy the elements of a scire facias sur mortgage action. Hence, Plaintiff's Motion for Summary Judgment is GRANTED.
/s/ Robert B. Young
J. RBY/dsc oc: Prothonotary
cc: Opinion Distribution