Opinion
C.A. No.: S14L-07-015 RFS
04-02-2015
RE: CitiMortgage, Inc. v. Carolyn Swift a/k/a Carolyn L. Swift
Daniel T. Conway, Esquire Atlantic Law Group, LLC 512 East Market Street Georgetown,DE 19947 Carolyn Swift a/k/a Carolyn L. Swift 2021 Ashwood Run The Villages, FL 32162 Carolyn Swift a/k/a Carolyn L. Swift 112 Red Cedar Drive Milton, DE 19968
RICHARD F. STOKES JUDGE Daniel T. Conway, Esquire
Atlantic Law Group, LLC
512 East Market Street
Georgetown,DE 19947
Carolyn Swift a/k/a Carolyn L. Swift
2021 Ashwood Run
The Villages, FL 32162
Carolyn Swift a/k/a Carolyn L. Swift
112 Red Cedar Drive
Milton, DE 19968
Dear Counsel:
The Motion for Summary Judgment filed by Plaintiff is denied. Material facts are disputed, and judgment may not be entered as a matter of law.
Plaintiff seeks entry of an order granting summary judgment; however, material factual matters in dispute are apparent upon review of the record. "[S]ummary judgment may not be granted when the record indicates 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 law to the circumstances." When considering the facts in the light most favorable to the non-moving party, there are details set forth in the answer, accompanying affidavits, and documents illustrating genuine issues of material fact regarding an alleged deed in lieu of foreclosure.
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del. Super. 1995).
Pullman, Inc. v. Phoenix Steel Corp., 304 A.2d 334, 335 (Del. Super. 1973) (discussing the standard of review at the summary judgment stage).
Including a letter dated July 2, 2012 referencing a deed in lieu of foreclosure. See, Def.'s Aff. Ex. A, No. 1(b).
Plaintiff contends Defendant's bankruptcy proceedings may not protect Plaintiff from an in rem action such as the present scire facias action. Even if this is correct, questions may arise concerning whether a deed in lieu of foreclosure was accepted by Plaintiff and whether adequate notice was provided regarding Plaintiff's alleged rejection of a deed in lieu of foreclosure. These contested issues present genuine factual disputes and prevent this Court from entering an order granting summary judgment.
See e.g., In re Mandehzadeh, 2014 WL 423609 (Bankr. E.D. Va. Feb. 4, 2014) (explaining "[a] creditor's in personam and in rem rights are treated separately" because "[t]he in personam right is eliminated by a discharge in bankruptcy" but "[a] discharge does not affect the in rem right" which can "pass[] through bankruptcy unaffected by a discharge" (citing Branigan v. Davis (In re Davis), 716 F.3d 331, 338 (4th Cir.2013)).
See, Quadrant Structured Products Co., Ltd. v. Vertin, 106 A.3d 992, 1009 (Del.) certified question accepted, 980 N.Y.S.2d 379 (N.Y. 2013) and certified question answered, 992 N.Y.S.2d 687 (N.Y. 2014) (explaining "[i]f the borrower defaults, the bank can proceed in rem by foreclosing on the mortgage, sue the borrower in personam on the promissory note, or both").
Super. Ct. Civ. R. 56(c).
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At this juncture, further inquiry is required and this case may not be summarily resolved. For the foregoing reasons, Plaintiff's Motion for Summary Judgment is DENIED.
IT IS SO ORDERED
Very Truly Yours,
/s/ Richard F. Stokes
Hon. Richard F. Stokes
cc: Prothonotary