Bank of America, N.A. v. Ireland
N16L-01-060 JRJ
| Del. Super. Ct. | Jun 23, 2017Background
- Ireland executed a mortgage in 2009 on property in Wilmington, DE; MERS assigned the mortgage to Bank of America (BoA).
- BoA filed a scire facias sur mortgage foreclosure action on January 15, 2016.
- The parties participated in foreclosure mediation (May 4 and June 1, 2016); mediation failed because Ireland was only eligible for reinstatement, not modification.
- BoA provided reinstatement payoff letters (Aug. 4, 2016 and Oct. 2016) showing amounts due; Ireland was unable to pay the stated amounts within the validity periods.
- Ireland answered asserting he was ready and able to cure and demanded inspection of the original promissory note; he never tendered the full reinstatement amount nor pursued discovery about the note.
- BoA moved for summary judgment arguing Ireland lacked an allowable defense and had not tendered the reinstatement amount; the Court granted summary judgment for BoA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ireland may defend foreclosure by alleging BoA refused to allow reinstatement without tendering the full amount due | BoA: Ireland has not tendered nor shown ability to tender required reinstatement amounts; therefore no defense prevents foreclosure | Ireland: He is ready, willing, and able to cure and was denied the opportunity to reinstate; requests that escrow deficiency be cured via increased monthly payments after reinstatement | Held: Ireland never tendered the full amount and has no valid defense; summary judgment for BoA granted |
| Whether Ireland’s demand to inspect the original promissory note creates a defense to foreclosure | BoA: No such inspection/demand was pursued in response or by discovery and it was not argued substantively | Ireland: Alleged he never saw the original note and asserted inspection as a defense in his answer | Held: Court declined to consider the note-inspection claim (not pressed in response or supported by discovery); it did not create a triable issue |
| Whether new arguments about the correctness of reinstatement amounts can be raised at oral argument | BoA: Reinstatement calculations are controlling absent specific evidence challenging them | Ireland: Argued at oral argument that reinstatement amounts may be incorrect | Held: Court refused to accept new legal arguments first raised at oral argument; they cannot create a genuine issue on summary judgment |
Key Cases Cited
- Moore v. Sizemore, 405 A.2d 679 (Del. 1979) (summary judgment burden-shifting standard)
- Merrill v. Crothall-American, Inc., 606 A.2d 96 (Del. 1992) (summary judgment review requires viewing facts in favor of non-movant)
- Atamian v. Hawk, 842 A.2d 654 (Del. Super. 2003) (non-movant must produce specific evidence to create a genuine factual dispute)
- Roca v. E.I. du Pont de Nemours & Co., 842 A.2d 1238 (Del. 2004) (new legal arguments cannot be raised for the first time at oral argument)