Opinion
C.A. No: K16L-06-021 RBY
03-20-2017
WELLS FARGO BANK, NA, Plaintiff v. DAVID E. KEITH, JR. and TAMMY KEITH, Defendants.
Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff. David E. King, Jr., Pro se, Tammy Keith, Pro se, Defendants.
Upon Consideration of Plaintiff's Motion for Summary Judgment
GRANTED
ORDER
Daniel T. Conway, Esquire, Atlantic Law Group, LLC, Georgetown, Delaware for Plaintiff. David E. King, Jr., Pro se, Tammy Keith, Pro se, Defendants. Young, J.
SUMMARY
Wells Fargo Bank, NA (Plaintiff) filed this Motion for Summary Judgment against David E. Keith, Jr. and Tammy Keith (Defendants) in a scire facias sur mortgage action. Plaintiff met its summary judgment burden by demonstrating that there is not a genuine issue of material fact. Defendants did not respond. Plaintiff is entitled to judgment as a matter of law. Thus, Plaintiff's motion is GRANTED.
FACTS AND PROCEDURE
On May 25, 2012, Defendants executed and delivered a mortgage to Access National Mortgage for a property in Houston, Delaware. Plaintiff states 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. Defendants admitted these allegations in their Answer to Plaintiff's Complaint.
Plaintiff claims that it demanded that Defendants make their mortgage payments in a demand letter dated November 16, 2015. Plaintiff asserts that acceleration of the sum secured by the instant mortgage was proper in this instance, and the Defendants still have not cured their alleged default.
Plaintiff filed its Complaint on June 9, 2016. On January 17, 2017, Plaintiff filed its Motion for Summary Judgment. As indicated, Defendants did not respond to this 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 argues that it 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, because Defendants have not asserted a defense allowed in a scire facias sur mortgage action, summary judgment is appropriate.
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. Defendants admitted in their Answer to Plaintiff's Complaint that Plaintiff was assigned the mortgage and that they failed to pay their 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 failed to satisfy their summary judgment burden to show that there are material issues of fact in dispute. They did not file a response to Plaintiff's Motion for Summary Judgment. Further, as noted above, they admitted that the Plaintiff satisfied the elements of a scire facias sur mortgage action in their Answer to the Plaintiff's Complaint. The facts permit a reasonable person to draw but one inference: that Plaintiff is entitled to summary judgment.
CONCLUSION
Plaintiff demonstrated that there is not a genuine issue of material fact, thereby satisfying its summary judgment burden. Defendants failed to satisfy their summary judgment burden of showing that there are material issues of fact in dispute. The facts that Plaintiff demonstrated satisfy the elements of a scire facias sur mortgage action. Hence, Plaintiff's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
/s/ Robert B. Young
J. RBY/dsc
cc: Opinion Distribution