Opinion
C.A. No. 00L-10-077 WLW
Submitted: November 2, 2001
Decided: December 28, 2001
Upon Plaintiff's Motion for Summary Judgment.
Denied.
Jeffrey S. Welch, Esquire, Welch Associates, Wilmington, Delaware, attorneys for the Plaintiff.
Douglas A. Shachtman, Esquire, Douglas A. Shachtman Associates, Wilmington, Delaware, attorneys for the Defendants.
ORDER
1. Plaintiff, Wilmington Trust Company, filed a foreclosure complaint on October 23, 2000 against the Defendants, Theophilus R. Nix and Lulu Mae Nix, to obtain a judgment. This complaint was later amended on November 15, 2001 with Plaintiff claiming an unpaid principal balance of $152,221.16 on a Wilmington Trust first mortgage and note dated November 5, 1992, together with past due interest in the amount of $5,967.81, a per diem of $34.93, Past due late charges in the amount of $699.10, recording fees in the amount of $33.10, and attorney's fees together with court costs. Plaintiff also seeks a judgment on a second mortgage (the equity line) and note claiming that the Defendants owe $24,200.88 in principle, $157.73 in interest, a per diem of $6.57, and late charges, together with attorney's fees and costs.
2. Defendants filed their answer to Plaintiff's Amended Complaint on April 11, 2001 with the sole defense of the right to reinstatement pursuant to paragraph 18 of the first mortgage.
3. This foreclosure proceeding has not taken the usual track because of disputes between counsel over time to respond and a failure to provide legible copies.
4. Further delay was occasioned by the request of Plaintiff to have this matter specially assigned so that the pending motion for summary judgment could be heard before September 25, 2001.
5. This case was specially assigned to me on July 2, 2001 and set down for a hearing on August 3, 2001. Thereafter, this matter was rescheduled twice before being heard on November 2, 2001.
6. Plaintiff submitted an Affidavit dated November 2, 2001 stating the amount due as of that date on both obligations, together with interest, late fees, attorney's fees, and other costs. This Affidavit ignores what was due as of December 1, 2000.
7. There is no evidence before this Court that payments have been tendered since December 1, 2000. If this amount would make the first mortgage current as of December 1, 2000, it is not clear that the Defendants have the right to reinstatement on the equity line. The calculation on interest due, costs, and attorney's fees cannot be determined until this Court determines what was due on December 1, 2000.
8. Superior Court Civil Rule 56(c) states that 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". Summary judgment cannot be granted unless after viewing the record in light most favorable to the non-moving party, there are not material issues of fact. The moving party bears the burden of showing that there are no material issues of fact; however, if the moving party "supports" the motion under the Rule, the burden shifts to the non-moving party to show that material issues of fact do exist. In Merrill v. Crothall-American, Inc., the court stated that the "role of a trial court when faced with a motion for summary judgment is to identify disputed factual issues whose resolution is necessary to decide the case, but not to decide such issues." Summary judgment will not be granted in cases where the record indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law.
Sup. Ct. Civ. Rule 56(c).
Moore v. Sizemoore, Del. Supr., 405 A.2d 679, 680 (1979).
Id.
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99 (1992).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 468-469 (1962).
9. As the Superior Court recalled in First Federal Savings Loan Assoc. of Norwalk v. Falls:
A writ of scire facias sur mortgage requires the mortgagor to appear before the Court and establish why the mortgaged property should not be seized and sold to pay for his indebtedness. 10 Del. C. § 5061. The mortgagor's responsive pleadings to the writ have been restricted under the Delaware Supreme Court's holding in Gordy v. Preform Building Components, Inc., Del. Supr., 310 A.2d 893 (1973). There the Court ruled that the mortgagor may plead payment or satisfaction, or he may plead "in avoidance" of the mortgage. The Court identified several examples of matters properly asserted under a plea of avoidance, including acts of God, assignment, conditional liability, duress, exception, forfeiture, fraud, illegality, justification, non-performance of condition precedents, and waiver. These limitations are consistent with the nature of the scire facias action as an expeditious remedy. Wooley on Delaware Practice §§ 1358.
First Federal Savings Loan Assoc. of Norwalk v. Falls, Del. Super., C.A. No. 88L-FE-11, O'Hara, J. (Sept. 9, 1986), Mem. Op. at 1.
10. Using this standard and the requirements of 10 Del. C. § 3901, a writ of scire facias has a limited number of defenses that prevent judgment from being entered. Wilmington Trust claims with this summary judgment motion that the Defendants have none of the appropriate defenses of "satisfaction, payment or plea in avoidance." The Defendants claim that summary judgment should not be granted because they tendered $8,000 to reinstate the loans pursuant to paragraph 18 of the mortgage. The Defendants do not make a similar claim with respect to the equity line.
First Federal at 1; Gordy, Inc. v. Perform Building Components, Inc., Del. Supr., 310 A.2d 893 (1973).
11. Wilmington Trust did not address the $8,000 tendered for reinstatement in either their motion for summary judgment or the amended motion for summary judgment. Based on paragraph 18 from the mortgage, it would appear that summary judgment is inappropriate because a factual dispute exists as to the meaning of paragraph 18 and whether sufficient tender was made on December 1, 2000. The Affidavit submitted by the Plaintiff on November 2, 2001 is insufficient for this Court to enter judgment. It may well be that the $8,000 would be an insufficient amount by Wilmington Trust; however, that would still be a factual dispute about the correct amount, thereby precluding summary judgment.
Therefore, an evidentiary hearing will be held to determine whether the $8,000 would be sufficient to reinstate the first mortgage; whether the Defendants have a right to reinstate the equity line; and all interest and other costs due as of December 1, 2000.
IT IS SO ORDERED.