Lakeview Loan Servicing, LLC. v. Green-Hall ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LAKEVIEW LOAN SERVICING, LLC, )
)
Plaintiff, )
v. ) C.A. No. N24L-08-047 PRW
)
COREY GREEN-HALL and )
NIKKI SMITH, )
)
Defendants. )
Submitted: September 30, 2024
Decided: October 21, 2024
ORDER DENYING
DEFENDANTS’ SECOND AND THIRD MOTIONS TO DISMISS
HAVING FULLY CONSIDERED Defendants Corey Green-Hall and Nikki
Smith’s most recent Motions to Dismiss (D.I. 8 and 9), Plaintiff Lakeview Loan
Servicing’s response thereto (D.I. 10 and 11), the authorities cited, and the entire
record developed thus far, it appears to the Court that:
(1) On August 23, 2024, Plaintiff Lakeview Loan filed its complaint for a
writ of scire facias sur mortgage alleging that Defendants have defaulted in
payments and owes it the principal amount remaining on a mortgage for a property
known as 10 Central Avenue, Wilmington, Delaware [Tax Parcel No. 07-038.10-
345].1
1
D.I. 1.
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(2) Invoking this Court’s Civil Rule 12(b)(3), the Defendants immediately
answered with a “Motion to Dismiss for Improper Venue” wherein they insisted that
this Court “is an improper venue for the claims asserted.”2 The Court denied that
first motion to dismiss on September 16, 2024.3
(3) Rather than file an answer to the Complaint as then required, 4 the
Defendant’s docketed two new motions to dismiss.5
(4) The first motion is purported to be filed by Defendant Smith alone. It
is entitled “Defendant’s Motion to Dismiss for Lack of Liability” and cites as
authority “Rule 12(b) of the Delaware Rules of Civil Procedure.”6 Therein,
Ms. Smith suggests that she can not be named as a defendant in this action seeking
a writ of scire facias sur mortgage because there is no “privity of contract” between
Lakeview Loan and her.7
(5) The second motion is purported to be filed by Defendant Green-Hall
alone. It is entitled “Motion to Dismiss for Failure to State a Claim” and cites as
2
D.I. 5. at ¶ 1. Through that motion, Defendants also contended that this Court lacked subject
matter jurisdiction over Plaintiff’s claim. Id. at ¶¶ 2-3.
3
D.I. 7.
4
See generally Del. Super. Ct. Civ. R. 12(a)(1) (providing that when the Court denies a Rule
12(b) motion, a defendant’s Answer to the Complaint is to be served within ten days of the Court’s
denial).
5
D.I. 8 and 9.
6
D.I. 8.
7
D.I. 8 at ¶ 1.
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authority “Rule 12(b)(6) of the Delaware Superior Court Civil Rules.”8 Therein,
Mr. Green-Hall suggests that Lakeview Loan cannot seek a writ of scire facias sur
mortgage because he has notified Lakeview Loan that he “took full ownership of the
mortgage note, thereby guaranteeing his rights to interest” that he posits is
documented and perfected in a “signed Security Instrument” he attached to his
motion.9 According to Mr. Green-Hall, this means he has “fulfilled his obligations
and [under the mortgage] and has complied with all applicable legal requirements,”
Lakeview Loan, therefore, “has no valid claim to proceed with this lawsuit.”10
(6) Lakeview Loan has docketed its response to both motions arguing that
its complaint has named the proper and necessary parties to and pled sufficient facts
and evidence in support of its prayer for a complaint for a writ of scire facias sur
mortgage.11
(7) Though only one cites a specific Rule 12(b) provision, each of
Defendants’ motions is governed by this Court’s Civil Rule 12(b)(6).12
8
D.I. 8.
9
D.I. 9 ¶ 1.
10
Id. at ¶ 5.
11
D.I. 10.
12
Freedom Mortgage Corp. v. Rayfield, 2023 WL 2134977, at *1 (Del. Super. Ct. Feb. 17, 2023)
(noting that even when a motion to dismiss is filed in a mortgage foreclosure action fails to “speak
directly to any cognizable grounds for dismissal under Superior Court Civil Rule 12 . . . the Court
will treat the motion as a motion to dismiss for failure to state a claim under Superior Court Civil
Rule 12(b)(6)).
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(8) A motion to dismiss under this Court’s Rule 12(b)(6) tasks the Court
with weighing the complaint’s allegations against the governing reasonable
conceivability pleading standard.13 When applying Rule 12(b)(6), the Court views
the complaint in the light most favorable to the plaintiff, accepts as true all of the
complaint’s well-pled allegations, and draws all reasonable inferences in the
plaintiff’s favor.14 The complaint and any attached documents generally define the
“universe of facts” this Court may consider when ruling on a 12(b)(6) motion to
dismiss.15 And in the end, this Court must deny dismissal unless the plaintiff could
not recover under any reasonably conceivable set of circumstances susceptible of
proof.16
(9) Ms. Smith seems to believe that Lakeview Loan is somehow seeking to
have her pay the mortgage debt. But as Woolley on Delaware Practice explains the
purpose of the process of scire facias sur mortgage is
. . . that the sheriff make known to the defendant that he be and appear
13
Windsor I, LLC v. CWCapital Asset Mgt. LLC, 238 A.3d 863, 871-72 (Del. 2020) (Under
Superior Court Rule 12(b)(6), “[t]he grant of a motion to dismiss is only appropriate when the
“plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances
susceptible of proof.”) (internal quotations omitted).
14
Id. (quoting Deuley v. DynCorp Intern., Inc., 8 A.3d 1156, 1160 (Del. 2010)).
15
In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (“The complaint
generally defines the universe of facts that the trial court may consider in ruling on a Rule 12(b)(6)
motion to dismiss.”); Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004)
(“On a motion to dismiss, the Court may consider documents that are ‘integral’ to the complaint,
but documents outside the pleadings may be considered only in ‘particular instances and for
carefully limited purposes.’”).
16
Savor, Inc. v. FMR Corp., 812 A.2d 894, 897 (Del. 2002).
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at the Superior Court on a day named “to show cause, if any he have,
or know to say wherefore the said mortgaged premises with the
appurtenances should not be seized and taken in execution and sold to
satisfy the said (plaintiff), the mortgage money aforesaid . . . .17
As such, this is an in rem action that does not—as Ms. Smith suggests—seek to hold
her individually “liable for a debt” or to “collect any debt from Nikki Smith.”18 It
is instead, an action to foreclose on the mortgage held on the subject property. And
Ms. Smith, since November 4, 2021, has appeared on the recorded deed for that
subject property.19
(10) In turn, she—because of the governing statute—has been properly and
necessarily named as a party in this mortgage foreclosure action.20 And so,
Ms. Smith’s motion to dismiss must be DENIED.
(11) Again, Lakeview Loan has sought a writ of scire facias sur mortgage
via 10 Del. C. § 5061(a) which provides, in pertinent part:
. . . upon breach of the condition of a mortgage of real estate by
17
2 WOOLLEY ON DELAWARE PRACTICE § 1358 (1906).
18
D.I. 8 ¶ 2.
19
Plaintiff’s Resp. to Mots. to Dism., Ex. A (recorded deed) (D.I. 11). See In re Gen. Motors
(Hughes) S’holder Litig., 897 A.2d at 168 (explaining that under Rule 12(b)(6) “it may be proper
for a trial court to decide a motion to dismiss by considering documents referred to in a complaint
. . . [and] [t]he trial may also take judicial notice of matters that are not subject to reasonable
dispute.) (citing Delaware Rule of Evidence 201(b): “The court may judicially notice a fact that is
not subject to reasonable dispute because it . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.”).
20
DEL. CODE ANN. tit. 10, § 5061(b) (2024) (“In addition to the mortgagor, and such mortgagor’s
heirs . . . the following persons shall be necessary parties in every mortgage foreclosure action . .
. [r]ecord owners acquiring title subject to the mortgage (terre tenants) which is being foreclosed
upon; and . . . [p]ersons having an equitable or legal interest of record.”).
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nonpayment of the mortgage money . . . at the time and in the manner
therein provided the mortgagee . . . may, at any time after the last day
whereon the mortgage money ought to have been paid . . . sue out of
the Superior Court of the county wherein the mortgage premises are
situated a writ of scire facias upon such mortgage . . .21
(12) At this pleading stage, the Court need only determine whether
Lakeview Loan has adequately alleged in its complaint that it is reasonably
conceivable that it is due a writ of scire facias in this run-of-the-mill mortgage
foreclosure action.22 Attached to the Complaint are copies of: (a) the mortgage on
the subject property, 10 Central Avenue, Wilmington, Delaware [Tax Parcel No. 07-
038.10-345] that is signed by Mr. Green-Hall;23 (b) the assignment of that mortgage
to Lakeview Loan;24 and, (c) the original note held by Lakeview Loan.25 The
Complaint clearly avers Mr. Green-Hall has defaulted by failing to pay the monthly
installments of the mortgage when due and that he owes Lakeview Loan a remaining
principal amount on the mortgage.26
(13) Dismissal is warranted only if it appears with reasonable certainty that
Lakeview Loan could not prove any set of facts that would entitle it to the relief it
21
DEL. CODE ANN. tit. 10, § 5061(a) (2024).
22
Freedom Mortgage Corp., 2023 WL 2134977, at *2.
23
Compl., Ex. F (Mortgage) (D.I. I).
24
Id., Ex. H (Assignment of Mortgage).
25
Id., Ex. G (Note).
26
Id. at ¶¶ 4, 10.
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seeks under 10 Del. C. § 5061(a).27 Mr. Green-Hall has failed to carry that necessary
burden under Rule 12(b)(6) and his separate motion to dismiss must be DENIED.
(14) The Court will not consider any further motions to dismiss.
Defendants must file an answer to the complaint in conformity with Civil Rule
12(a)(1)—that is, the answer must be docketed on or before November 1, 2024.
SO ORDERED this 21st day of October, 2024.
/s/ Paul R. Wallace
______________________________
Paul R. Wallace, Judge
Original to Prothonotary
cc: All parties and Counsel of Record
27
Freedom Mortgage Corp., 2023 WL 2134977, at *2.
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