Branch Banking and Trust Company v. Elad

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
BRANCH BANKING AND TRUST ) C.A. No. N17L-06-100 EMD
COMPANY, ) TAX PARCEL NO. 06-096.00-167
)
) Sci. Fa. Sur Mortgage Action
Plaintiff, ) In Rem
)
v. )
) MORTGAGE INSTRUMENT
JOSEPH ELAD A/K/A JOSEPH B ELAD, ) #20080425-0028423
FAITH ELAD A/K/A FAITH B ELAD, and ) ASSIGNMENT INSTRUMENT
UNITED STATES OF AMERICA, ) #20170419-0019341
)
Defendants. )
Submitted: July 8, 2022
Decided: August 17, 2022
Upon Defendant Joseph B. Elad’s Motion for Recusal of Judge Eric M. Davis
DENIED
Janet Z. Charlton, Esquire, McCabe, Weisberg & Conway, LLC, Wilmington, Delaware
Attorney for Plaintiff Branch Banking and Trust Company.
Joseph B. Elad, pro se.
DAVIS, J.
I. INTRODUCTION
This is a Sci. Fa. Sur mortgage foreclosure action. Presently before the Court is
the Motion for Recusal of Judge Eric M. Davis (the “Motion”)1 filed by Defendant
Joseph B. Elad. The Court has reviewed the Motion and the entire docket in this civil
action. The Court has determined that no hearing is necessary on the Motion. For the
reasons set forth below, the Motion is DENIED.
1
D.I. No. 84.
II. GENERAL BACKGROUND
Plaintiff Branch Banking and Trust Company (“BB&T”) filed this action on June
23, 2017.2 BB&T had to file this action in the Court as the Court has subject matter
jurisdiction over Sci. Fa. Sur Mortgage Actions.3
The docket reflects that BB&T holds a mortgage on 2700 Philadelphia Pike,
Claymont, Delaware 19703 (the “Property”) through an assignment. The New Castle
Recorder recorded the mortgage on April 25, 2008.4 The New Castle Recorder recorded
the assignment on April 19, 2017.5 BB&T attached a copy of the recorded Mortgage and
the recorded Assignment of Mortgage to the Complaint.6 BB&T did so to demonstrate it
has a valid lien on the Property.
BB&T served the property owners, Mr. Elad and Faith Elad.7 Thereafter, the
parties engaged in Court mediation.8 Mr. Elad agreed to9 and participated in the
mediation process.10 The mediation did not result in a resolution.11 After the final
mediation session, “the parties agree[d] that [BB&T] shall not seek a default judgment
before July 1, 2018.”12
No answer was ever filed in this civil action. A default judgment was entered on
August 15, 2018.13
2
D.I. No. 1.
3
10 Del. C. § 5061.
4
Compl., Ex. A.
5
Id., Ex. B.
6
D.I. No. 1.
7
D.I. Nos. 9, 10, 12 and 13.
8
D.I. Nos. 11, 17, 18, 19, 20, 21 and 22.
9
D.I. No. 19.
10
D.I. Nos. 18, 19, 21 and 22.
11
D.I. No. 22.
12
D.I. No. 22.
13
D.I. No. 25. The previous default judgment, erroneously entered on November 30, 2017, was vacated
without prejudice on November 2, 2018. D.I. Nos. 28 and 29.
2
BB&T began the sheriff’s sale process, noticing the sale for June 11, 2019.14
BB&T provided notice of the sale on Mr. Elad and Ms. Elad.15 Mr. Elad filed for
bankruptcy on June 7, 2019 in the United States Bankruptcy Court for the District of
Delaware (the “Bankruptcy Court”).16 The Bankruptcy Court dismissed Mr. Elad’s
bankruptcy on September 24, 2019.17
On February 6, 2020, BB&T filed with the Court another notice of sheriff’s sale.18
The proposed date for the sale was February 11, 2020.19 BB&T filed the notice on Mr.
Elad and Ms. Elad.20 Ms. Elad then filed for bankruptcy on February 7, 2020.21 The
Bankruptcy Court dismissed Ms. Elad’s bankruptcy on May 18, 2020.22
After dismissal of Ms. Elad’s bankruptcy case, BB&T reset the prosecution of this
action. Judgment was entered on September 8, 2021.23 BB&T proceeded to a sheriff’s
sale. BB&T published notice of the sale.24 On March 8, 2022, BB&T purchased the
Property at the sheriff’s sale for $356.250.25
Mr. Elad has filed several motions for reconsideration and to vacate. Among
other things, Mr. Elad has contended lack of notice and lack of subject matter
jurisdiction. Presently, Mr. Elad contends that BB&T is a fictious entity and that I am
conspiring with BB&T to deprive Mr. Elad of the Property and his due process rights.
14
D.I. No. 35.
15
D.I. No. 35.
16
D.I. No. 37.
17
D.I. No. 38.
18
D.I. No. 44.
19
D.I. No. 44.
20
D.I. No. 44.
21
D.I. No. 46.
22
D.I. No. 48.
23
D.I. No. 50.
24
D.I. Nos. 51, 68, 69 and 80.
25
D.I. No. 83.
3
Mr. Elad seems to base his recusal argument on (i) his fraud counterclaims and (ii)
because the Court has ruled against him on his various motions.
III. THE MOTION
Mr. Elad filed the Motion on or about July 8, 2022. Mr. Elad contends that I
should recuse myself from this action. Mr. Elad lists a series of “grounds” for recusal: (i)
Judge Davis is a complicit participation in the fraud perpetrated by BB&T through
judicial misconduct and flagrant abuse to empower criminal acts; (ii) Judge Davis is
complicit by failing “his Administrative Duties per the U.S. Administrative Procedure
Act” as a judge including the failure to follow the U.S. Constitution and due process; (iii)
Judge Davis ignored and violate the “’Right to Privacy’ addressed in the 1st Amendment,
3rd Amendment, 4th Amendment, 5th Amendment and the ‘Liberty’ Guarantee of the 14th
Amendment of the U.S. Constitution;” and (iv) Judge Davis is directly responsible for
damages claimed in Mr. Elad’s counterclaim.
Mr. Elad is basically contending that recusal is appropriate here because the Court
has entered relief in favor of BB&T despite Mr. Elad’s opposition to that relief. As such,
I am now a co-conspirator with BB&T and BB&T’s actions to foreclose on the Property.
IV. DISCUSSION
Judicial impartiality is a “fundamental principle of the administration of
justice.”26 It is well settled under Delaware law that a judicial officer must recuse himself
if “there is a reasonable basis to question his impartiality.”27 This includes situations in
which the judge has personal bias or prejudice concerning one of the parties or personal
26
Jones v. State, 940 A.2d 1, 17 (Del. 2007); Home Paramount Pest Control v. Gibbs, 953 A.2d 219, 222
(Del. 2008).
27
Home Paramount Pest Control, 953 A.2d at 221.
4
knowledge of disputed evidentiary facts concerning the case.28 Further, pursuant to Rule
2.11(A) and (A)(4)(a) of the Delaware Judges’ Code of Judicial Conduct (2008), a judge
has a direct responsibility to avoid participation in proceedings whenever his impartiality
might be reasonably questioned, including the instance where the judge (i) served as a
lawyer in the matter in controversy, (ii) was a lawyer in a firm at a time when another
lawyer in the firm served as a lawyer in the matter in controversy, or (iii) was associated
in the practice of law within the preceding year with a law firm or lawyer acting as
counsel in the proceeding.29
When faced with a potential conflict, the Court—here, the particular judge—is
required to engage in a two part analysis.30 First, the judge must subjectively determine
if he can hear the case free of bias.31 Second, even if the judge is satisfied and finds that
there is no actual bias, there may be situations where, absent actual bias, the appearance
of bias may cause doubt as to the judge’s impartiality.32 When this occurs, the judge
must then objectively determine whether there is an appearance of bias sufficient to cast
doubt on his impartiality.33 If a judge’s decisions or demeanor would cause an objective,
reasonable, observer viewing the circumstances to conclude that a fair or impartial
hearing is unlikely, then recusal is appropriate.34 In other words, the question to be
answered is whether an objective observer would entertain reasonable questions about the
judge’s impartiality, thus warranting recusal.35 The totality of the circumstances must be
28
See State v. Desmond, 2011 WL 91984, at *5 (Del. Super. Jan. 5, 2011).
29
Jones, 940 A.2d at 17.
30
Los v. Los, 595 A.2d 381 384 (Del. 1991).
31
Id. at 384-85.
32
Id. at 385.
33
Id.34
Fritzinger v. State, 10 A.3d 603, 611 (Del. 2010); see also Stevenson v. State, 782 a.2d 249, 258 (Del.
2001).
35
Gattis v. State, 955 A.2d 1276, 1285 (Del. 2008).
5
considered to determine whether there are sufficient grounds to doubt the judge’s
impartiality.36 However, in the absence of any objective basis for bias, the judge is not
obligated to recuse himself from the proceedings.37 Thus, the judge should carefully
consider the decision to recuse himself, and should be convinced that the two previously
stated conditions are met.38
Also to be taken into consideration is the Delaware Judges’ Code of Judicial
Conduct Rule 2.7(A). Rule 2.7(A), the “Responsibility to Decide,” provides that “[a]
judge shall hear and decide matters assigned, unless disqualified.”39 When read with
Rule 2.11, a judge has a “duty to sit” unless the judge is genuinely convinced of the need
for recusal or disqualification.40 Hence, the decision to recuse is not one that should be
made lightly, “because to do so is contrary to the Delaware Judges’ Code of Judicial
Conduct and [leaves the] case as one of [the recused or disqualified judge’s] colleague’s
problems to deal with”41 and unreasonably burdens fellow judges.
In the Motion, Mr. Elad argues that bias exists because the Court has entered
relief in favor of BB&T. Mr. Elad contends that the Court must be a co-conspirator
because BB&T is a fictious entity and he has never been served or appeared before the
Court. Mr. Elad claims that this Judge has hindered his access to justice, denied him due
process and otherwise breached my public trust
The Motion fails to satisfy either prong of the Los v. Los test. I subjectively have
no bias towards Mr. Elad or Ms. Elad. I have had no prior dealings with them. Despite
36
Fritzinger, 10 A.3d at 613.
37
Desmond, 2011 WL 91984, at *6 (“a judge’s duty to recuse or disqualify is complementary to, but not
greater than, his or her baseline duty not to recuse in the absence of any objective basis.”).
38
Id.39
Id., at *10.
40
Id.
41
Id.
6
the Motion’s unsupported claims, I have no interest in the outcome of this litigation, have
no financial interest in BB&T or the Property. I am satisfied that I can proceed to hear
this action free of bias or prejudice concerning any of the parties, including Mr. Elad.
Likewise, no reasonable observer could conclude that I am biased against Mr.
Elad or Ms. Elad. To the contrary, the procedural history of this case discloses nothing
more than this Judge’s impartial decisions on the various motions presented during the
history of this civil action. The Court has been patient with Mr. Elad despite repetitive
filings that, at time, border on being legally frivolous.
Mr. Elad is dissatisfied with this Court’s rulings, but this is nothing more than Mr.
Elad’s subjective (and unsubstantiated) allegations of bias. Accordingly, there is no
legitimate basis for disqualification or recusal. The granting of a party’s motion to recuse
or disqualify in any civil or criminal case, in the absence of a bona fide reason for recusal
or disqualification, would be “irresponsible”42 and a dereliction of the judicial duty to
hear and decide matters assigned, unless disqualified.43
Recently, Mr. Elad submitted counterclaims that name me as a counterclaim
defendant. Mr. Elad did not file an answer to BB&T’s complaint. Mr. Elad never
procedurally sought leave to file these untimely counterclaims, and filed the
counterclaims even though he has never answered the complaint.
As the Supreme Court stated in Los v. Los, “there is a compelling policy reason
for a judge not to disqualify himself [or herself] at the behest of a party who initiates
litigation against a judge. In the absence of genuine bias, a litigant should not be
42
Reeder v. Del. Dept. of Ins., 2006 WL 510067, *23 (Del. Ch. Feb. 24, 2006) (citations omitted).
43
Desmond, 2011 WL 91984, at *6.
7
permitted to ‘judge shop’ through the disqualification process.”44 The Supreme Court
noted that “[t]he orderly administration of justice would be severely hampered by
permitting a party to obtain disqualification of a judge through the expedient of filing suit
against him [or her].”45
This is the situation here. Mr. Elad named me as a counterclaim defendant
despite no actual factual support for his claims. Mr. Elad contends BB&T is a fictious
entity. BB&T, now known as Truist, is a banking institution with a long corporate
history nationally, in South Carolina and North Carolina. Mr. Elad contending that
BB&T is fictious does not make it so. In fact, Mr. Elad attempted to renegotiate his loan
with BB&T during the Court’s mortgage mediation process.46 Rhetorically, why would
Mr. Elad actively engage in an application process with BB&T if he believed BB&T to
be a fictious entity.
In addition, Mr. Elad constantly complains that he has not been served or knew
that this action was pending. The docket of this action demonstrates that not to be true.
Mr. Elad actively participated in the mortgage mediation process of this Court.47 Notices
filed in this case indicate service on Mr. Elad. In addition, Mr. Elad and Ms. Elad filed
for bankruptcy relief on the eve of two sheriff’s sales.48 The Court does not consider
these filings to be coincidental. Mr. Elad and Ms. Elad filed on the eve of foreclosure
knowing that the two sheriff’s sales had been noticed and scheduled.
I have considered all the other facts raised in the Motion, or other recent filings by
44
Los, 595 A.2d at 385.
45
Id. (citing Smith v. Smith, 564 P.2d 1266 (Ariz. 1977)).
46
D.I. No. 18 (“Borrowers agree to submit a complete application by January 17. Failure to submit an
Application will result in a FMR.”); D.I. No. 20 (“Lender needs additional time to review Borrowers’
Application.”).
47
D.I. Nos. 11, 17, 18, 19, 20, 21 and 22.
48
D.I. Nos. 37 and 46.
8
Mr. Elad, on this issue and find these do not support an argument that I am biased or
prejudiced or have the appearance of bias. I do not believe any objective observer would
entertain reasonable questions about my impartiality, thus warranting recusal, on the
allegations made by Mr. Elad in the Motion.
V. CONCLUSION
For the reasons set out above, the Motion is DENIED.
It is so ORDERED.
Dated: August 17, 2022
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
Joseph B. Elad
9