M&T Bank v. Poore, C. A. S19L-09-011 MHC

CourtSuperior Court of Delaware
Writing for the CourtMark H. Conner, Judge
PartiesM&T BANK, Plaintiff, v. VIRGINIA POORE, Defendant.
Docket NumberC. A. S19L-09-011 MHC
Decision Date22 November 2022

M&T BANK, Plaintiff,


C. A. No. S19L-09-011 MHC

Superior Court of Delaware

November 22, 2022

Submitted: September 20, 2022

Upon Consideration of Plaintiffs Motion for Summary Judgment, GRANTED.

Upon Consideration of Defendant's Motion for Summary Judgment, DENIED.

John E. Tarburton, Esquire, Orlans PC, Wilmington, Delaware, Attorney for Plaintiff

James J. Woods Jr., Esquire, Grady & Hampton, LLC, Dover, Delaware, Attorney for Defendant.


Mark H. Conner, Judge


This is a mortgage foreclosure case. Upon consideration of the Motions for Summary Judgment filed by M&T Bank ("Plaintiff") and Virginia Poore ("Defendant") and the facts, arguments, and authorities set forth by the parties the Court finds as follows:

1. On March 28, 2006, Defendant executed a mortgage and note to Wilmington Trust. Defendant borrowed $80,000 through a home equity loan which was secured by the mortgage property located at 325 Canal Court, Bethany Beach, Delaware 19930.

2. The exact dates are unknown, but at some point after Defendant executed the mortgage with Wilmington Trust, Defendant's grandson, Brandon Hottes, forged Defendant's signature on checks from the Wilmington Trust home equity loan account. When Defendant spoke with Hottes about the fraud, he admitted to forging checks with at least one being for $5,000.[1] Hottes is unsure of the number of checks he forged and how much money he stole.[2] Hottes was later incarcerated for an unrelated offense in October 2010.[3] Defendant never reported Hottes' forgeries and thefts regarding the account to either Wilmington Trust or the police.[4]


3. Wilmington Trust subsequently merged with Plaintiff and the entire account was assigned to Plaintiff on October 14, 2011.

4. On September 12, 2019, Plaintiff filed a scire facias sur mortgage action demanding the outstanding principle of $79,451.91 plus interest and fees. The complaint alleges that Defendant failed to pay the monthly installments of the mortgage. Defendant answered the complaint on October 15, 2019.

5. A scire facias sur mortgage action "is an in rem proceeding used to foreclose on a mortgage".[5] Delaware Law only recognizes three possible defenses to a scire facias sur mortgage action: payment, satisfaction, and plea in avoidance.[6]A plea in avoidance challenges the validity of "the original mortgage sued upon."[7] Pleas in avoidance include, "an act of God, assignment of cause of action, conditional liability, discharge, duress, exception or proviso of statute, forfeiture, fraud, illegality of transaction, nonperformance of condition, precedent, ratification, unjust enrichment, and waiver."[8]

6. As the movant, Plaintiff has the initial burden of demonstrating that there are no genuine issues of material fact. The Court has reviewed all of the documents submitted by Plaintiff and Defendant and cannot find anything that


creates a genuine issue of material fact. Plaintiff has provided the document proving assignment of the mortgage and note from Wilmington Trust to Plaintiff. A successor bank after a merger can enforce the note and mortgage of the predecessor.[9]Pursuant to 12 U.S.C. § 215a(e) banking associations participating in a merger shall be deemed the same corporation as each banking association participating in the merger and all rights, franchises, and interests shall be transferred to the receiving association. Accordingly, the successor bank after the merger acquires the rights of the predecessor bank.[10] Plaintiff acquired the right to act and subsequently foreclose on Defendant's account. Defendant...

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