The Bank of New York Mellon v. Pearson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THE BANK OF NEW YORK MELLON )
F/K/A THE BANK OF NEW YORK, AS )
TRUSTEE (CWABs 2006-SD2 ) )
Plaintiff, )
)
v. ) C.A. No. N16L-08-119 DJB
)
JEFFRY S. PEARSON )
THE UNITED STATES OF AMERICA )
Defendant. )
Submitted: March 4, 2024
Decided: March 5, 2024
Upon Defendant’s Motion to Stay the Sheriff’s Sale - DENIED
ORDER
This is a mortgage foreclosure case that has a long history of litigation.
Defendant Jeffry Pearson (“Defendant”) filed this motion to stay the scheduled
Sheriff’s Sale, currently scheduled for March 12, 2024, and to void the Plaintiff’s
mortgage on the subject property, on March 4, 2024.1 Given the emergent nature of
the request, the Court requested a response from Plaintiff The Bank of New York
Mellon (“Plaintiff”) on or before March 6, 2024. Plaintiff’s response was filed on
March 5, 2024.2 Upon consideration of the Motion, Plaintiff’s response in
opposition, the Superior Court Civil Rules, the facts, arguments, and authorities set
1
Bank of New York, Mellon FKA Bank of New York, as Trustee (CWABS 2006-
SD2) v. Jeffry S. Pearson, No. N16L-08-119 DJB; D.I. 45.
2
D.I. 48.
forth by the parties, statutory and decisional law, and the entire record in this case,
including prior decisions issued by this Court in this litigation; the Court hereby
finds as follows:
1. On October 25, 2005, Defendant executed a mortgage (“Mortgage”) on
a property located at 806 North Madison Street, Wilmington, Delaware 19801
(“Property”) to Best Rate Funding Corp. (“Best Rate”). 3 Pursuant to the Mortgage,
Defendant is the “Borrower” and Best Rate is the “Lender.”4 The Mortgage includes
various definitions and defines “Note” to mean “the promissory note signed by
Borrower and dated October 25, 2005. The Note states that Borrower owes Lender
NINETY-SEVEN THOUSAND FIVE HUNDRED AND 00/100 Dollars
[$97,500.00].”5
2. As is routinely done with mortgages, Best Rate subsequently assigned
its entire interest in the Mortgage to The Bank of New York, as Trustee for benefits
of The Note Holders CWABS, Inc. Asset-Backed Notes, Series 2006-SDR, which
in turn assigned its interest to Plaintiff.6
3. When Defendant failed to pay the monthly installments on the
Mortgage when due, Plaintiff filed a Scire Facias Sur mortgage foreclosure
3
Pl.’s Compl., Aug. 21, 2016, Ex. A., at 2.
4
Id.
5
Id.
6
See id. at 23-28.
2
complaint on August 21, 2016, seeking the principal sum remaining on the Mortgage
($95,172.39), in addition to interest, late charges, and legal fees.7 Defendant
answered the complaint on March 22, 2017.8 Mediation was scheduled for both
March 15, 2017, and May 17, 2017. Defendant failed to appear at the May 17
conference and a Final Mediation Record was filed on May 18, 2017, indicating
Defendant’s non-appearance and that the foreclosure action could proceed.9
4. As mentioned above, this case has a long history. Following mediation,
Plaintiff moved to enlarge the time for service,10 as Defendant challenged proper
service in his Answer to the Complaint.11 After considering the response in
opposition of Defendant, oral argument on the motion, and the complete record in
this case, Plaintiff’s motion was granted; the service made upon Defendant as of
January 17, 2017, was deemed perfected.12
5. Defendant thereafter moved for Certification for an Interlocutory
Appeal of the Court’s Order to the Delaware Supreme Court.13 Certification was
7
D.I. 1, 5.
8
D.I. 13.
9
D.I. 15.
10
D.I. 17.
11
D.I. 13.
12
D.I. 25.
13
D.I. 26.
3
denied by Order of this Court on November 1, 2017.14 Plaintiff then moved for
summary judgment.15 Defendant responded in opposition.16
6. In granting the motion for summary judgment in favor of Plaintiff, this
Court found:
…it is undisputed that Plaintiff has standing to bring this mortgage
foreclosure action. Plaintiff is a valid assignee of the Mortgage. Under
Shrewsbury Plaintiff must also “be a party entitled to enforce the
obligation … which the mortgage secures in order to foreclose on the
mortgage.” In other words, Plaintiff must be entitled to enforce the
underlying Note in order to foreclose on the Mortgage. The Note in
this case has an allonge to Countrywide Bank, N.A., an endorsement to
Countrywide Home Loans, Inc., and a blank endorsement.17 Pursuant
to the blank endorsement, Plaintiff is entitled to enforce the Note as a
holder of the Note.18
[]In addition, Defendant failed to raise any of the limited defenses
available in a mortgage foreclosure action.
[]As a result, Plaintiff is entitled to summary judgment. Defendant does
not dispute that he is in default of the Mortgage and did not plead any
of the available defenses. In addition, Defendant failed to establish that
there are any material facts in dispute. Plaintiff is the valid assignee of
the Mortgage and is entitled to enforce the underlying Note. As a result,
Plaintiff’s motion for summary judgment must be granted.
NOW, THEREFORE, this 19th day of December, 2017, Plaintiff’s
Motion for Summary Judgment is hereby GRANTED and
14
D.I. 29.
15
D.I. 32.
16
D.I. 36.
17
See Pl.’s Mot. for Summ. J., Ex. D, at 6.
18
See 6 Del. C. § 3-301; 6 Del. C. § 3-205.
4
JUDGMENT is entered in favor of Plaintiff The Bank of New York
Mellon and against Defendant. 19
7. Following the summary judgment grant, the Sheriff’s Sale originally
set for March 12, 2018, was stayed due to Defendant’s pending bankruptcy
proceedings.20 On December 28, 2023, a writ of Levari Facias was filed by Plaintiff
to recover the $249,680.60 owed on the property.21 The Writ was issued on January
16, 2024.22
8. Sheriff’s sale has been since scheduled for March 12, 2024.
Defendant’s instant motion to stay reargues many of the affirmative defenses raised
in his Answer and addressed by this Court in its grant of summary judgment.
Namely, Defendant challenges Plaintiff’s standing to assert these proceedings,
Defendant claims he has only a 50% interest in this property and presents a statute
of limitation defense.23 In addition, Defendant argues there was egregious delay, he
disputes the findings of bankruptcy court, and argues he was given insufficient
notice of the relisting of the property for this sale.24
19
Bank of New York, Mellon v. Pearson, 2017 WL 6496443 at *3, Rocanelli, J.
ORDER (Del. Super. Dec. 19, 2017) (internal citations omitted).
20
D.I. 42.
21
D.I. 43.
22
D.I. 44.
23
D.I. 45.
24
Id.5
9. With respect to the claims he raised, those have all been decided in
Plaintiff’s favor during the summary judgment stage. The law of the case doctrine
applies here, and these claims cannot be relitigated now.25
10. With respect to Defendant’s remaining claims, this Sheriff’s sale stems
from a scire facias sur mortgage action, which is “an in rem proceeding used to
foreclose on a mortgage.”26 Therefore, as mentioned throughout this litigation, there
are a limited number of defenses available to Defendant.27 The only defenses
available in a mortgage foreclosure action are: “payment of the ‘mortgage money,’
satisfaction or a plea in avoidance of the mortgage.”28
11. Defendant did not plead any of the limited defenses available in a
mortgage foreclosure action in his Answer, nor does he aver them now in the instant
motion. Plaintiff again disputes the allegations raised with respect to the possession
of the original Note. The Note was attached to and considered by this Court in
granting the summary judgment motion. There is no record evidence of before the
Court now to suggest any other finding was had in Bankruptcy Court that would
25
See Kenton v. Kenton, 571 A.2d 778, 784 (Del. Supr. 1990) (finding that the law
of the case doctrine is established when “a specific legal principle is applied to an
issue presented by facts which remain constant throughout the subsequent course
of the same litigation.”).
26
JPMorgan Chase Bank v. Hopkins, 2013 WL 5200520, at *2 (Del. Super. Sept.
12, 2013).
27
See Shrewsbury v. The Bank of New York Mellon, 160 A.3d 471, 475 (Del. 2017).
28
Id.6
disturb the previous finding in this Superior Court action. As a result, whether
Defendant has ever requested the original Note is irrelevant and moot.
12. Defendant’s argument that he was not properly noticed of the upcoming
sale is belied by several factors. Clearly, Defendant is aware of the upcoming sale,
based upon the very filing of this motion and the averments contained therein. This
is most likely due to both the fact that the Sheriff’s public website office states that
notice of the sale was posted on the property on February 13, 2024,29 and that a
certified mailing was sent to him notifying him of the upcoming sale. Plaintiff’s
counsel, as an officer of the Court, has represented in Plaintiff’s response in
opposition to Defendant’s motion, that a “certified mailing was sent to Defendant on
February 29, 2024.”30 Superior Court Civil Rule 69(g) provides that notice be
provided in specific fashion, “at least 7 days before the sale” of the property.31 While
today is the 7th day prior to the sale, the record indicates that the notice requirement
has been satisfied here when Plaintiff sent notice via its certified mailing.
13. Finally, with respect to Defendant’s claim that judicial economy
warrants a stay of this sale, this argument is unavailing. This case has been pending
before this Court since 2017. In the interest of justice and for Defendant’s benefit,
29
https://www.newcastlede.gov/DocumentCenter/View/19188/Current-Sheriff-
Sale-Poster-List?bidId=
30
D.I. 48, ¶ 7.
31
Superior Court Civil Rule 69(g).
7
it was stayed pending Defendant’s bankruptcy proceedings. Prior to the stay, this
case has been thoroughly litigated via numerous motions before the Court. All legal
issues have been litigated and resolved, giving no credence to the argument that
judicial economy is served by yet another delay in the proceedings.
THEREFORE, this 5th day of March, 2024, Defendant’s Motion to Stay
Sheriff’s Sale and void the mortgage is hereby DENIED. The sale of 806 North
Madison Street, Wilmington, Delaware, shall go forward as scheduled on March 12,
2024.
IT IS SO ORDERED.
_________________________________
The Honorable Danielle J. Brennan
8