Shipley v. First Federal Sav. and Loan Ass'n of Del.

• Decision Date: 26 August 1985
• Docket Number: Civ. A. No. 84-521 CMW.
• Citation: 619 F. Supp. 421
• Parties: John S. and Rochelle D. SHIPLEY, Plaintiffs, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF DELAWARE (formerly known as First Federal Savings and Loan Association of New Castle County); Joseph B. Green, Esquire of Green & Green Law Offices; Michael P. Walsh, Sheriff of New Castle County, Delaware; and Margo Ewing Bane, Prothonotary of New Castle County, Delaware, Defendants.
• Court: U.S. District Court — District of Delaware

619 F. Supp. 421

John S. and Rochelle D. SHIPLEY, Plaintiffs, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF DELAWARE (formerly known as First Federal Savings and Loan Association of New Castle County); Joseph B. Green, Esquire of Green & Green Law Offices; Michael P. Walsh, Sheriff of New Castle County, Delaware; and Margo Ewing Bane, Prothonotary of New Castle County, Delaware, Defendants.

Civ. A. No. 84-521 CMW.

United States District Court, D. Delaware.

August 26, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John S. and Rochelle D. Shipley, pro se.

Frank J. Miller, of Miller & Foulk, Wilmington, Del., for defendant, First Federal Sav. and Loan Ass'n of Delaware.

John A. Elzufon, of Elzufon & Bailey, Wilmington, Del., for defendant, Joseph G. Green, of Green & Green.

Theodore F. Sandstrom, of Wilmington, Del., for defendant, Michael P. Walsh, Sheriff of New Castle County, Del.

Brian A. Sullivan, Wilmington, Del., for defendant, Margo Ewing Bane, Prothonotary of New Castle County, Del.

OPINION

CALEB M. WRIGHT, Senior District Judge.

This civil rights action for damages and injunctive relief arises out of efforts by First Federal Savings & Loan Association ("First Federal") to foreclose a mortgage held on property owned by the plaintiffs, John and Rochelle Shipley. Presently before the Court are separate motions for summary judgment by two of the defendants: the Sheriff of New Castle County, Michael Walsh, and the Prothonotary of New Castle County, Margo Ewing Bane. In addition, the Court has directed the parties to brief for possible summary judgment additional issues regarding the constitutionality of the notice provision which First Federal attempted to use in connection with its foreclosure procedure.

I. BACKGROUND FACTS

On July 19, 1978, the plaintiffs executed a mortgage, which named First Federal as the mortgagee, in connection with their purchase of property and a house located at 609 Wildel Avenue, Minquadale, New Castle, Delaware. D.I. 98 (Exhibit H).¹ This mortgage was recorded thereafter in the Office for the Recording of Deeds in and for New Castle County, Delaware. A short time later, First Federal instructed its attorney, Joseph B. Green, to initiate foreclosure proceedings against the Shipleys for alleged non-payment on their mortgage. On January 21, 1981, an action was commenced in Superior Court by filing a complaint of scire facias sur mortgage. D.I. 97A (Exhibit 1).² Apparently service was unsuccessful in that an alias summons was requested by Green on February 2, 1981. Shortly thereafter, First Federal directed Green to discontinue the foreclosure proceedings. D.I. 97:2.³ On August 12, 1983, some eighteen months after initiating the foreclosure proceedings, Green notified the Prothonotary of New Castle County to dismiss the action.

Within six months of the dismissal, First Federal had renewed its instructions to Green to bring a foreclosure action which Green filed on February 23, 1983. Once again, First Federal rescinded its instruction within a short time and once again, Green so notified the Prothonotary.

On May 4, 1983, a third foreclosure action on the Shipleys' property was commenced in Superior Court on a complaint of scire facias. It is the events arising out of this action that form the underlying basis of the Shipleys' claims. In connection with this third action, First Federal attempted to accomplish service by having a writ of scire facias sur mortgage served on the Shipleys by the Sheriff.

The Sheriff's affidavit offers the following account of the ensuing events:

5. In this particular case, a copy of the Sci. Fa. Sur Mortgage, writ, summons and complaint was received in my office on May 5, 1983, commanding the Sheriff to summon and serve the defendants, John S. Shipley and Rochelle D. Shipley. The address provided for service was 609 Wildel Avenue, Minquadale, Wilmington, De. On May 9, 10, 11, 18 and 20, 1983, attempts were made by my deputies to serve the Shipleys with a copy of the summons and complaint. These attempts were unsuccessful either because there was no answer or only a minor was at home. No personal service was made. No copy of the summons and complaint was posted upon the property. No copy of the summons and complaint was delivered to either defendant. No copy of the summons and complaint was left at the Shipleys' dwelling house. As a result of the numerous attempts at service, the Sci. Fa. writ was returned to the Prothonotary on May 26, 1983. The return stated: "Non-sunt Inventi to John S. Shipley and Rochelle D. Shipley, his wife, on the 26th day of May, A.D., 1983."

6. Subsequently, my office received in this particular case, an alias Sci. Fa. Sur Mortgage writ on June 6, 1983, for service of the summons and complaint upon the defendants at 609 Wildel Avenue, Minquadale, Wilmington, Delaware. On June 8, 13, 14, 16, and 17, attempts at service were made upon Mr. and Mrs. Shipley. The at service were unsuccessful. On one occasion, there was no answer. On two other occasions, only minor children were at home. No personal service was made upon the defendants. No copy of the summons and mortgage complaint was delivered or read to the defendants personally. No copy thereof was left at the Shipleys' dwelling house. On June 28, 1983, as a result of the unsuccessful attempts at service the alias Sci. Fa. writ was returned to the Prothonotary. The return stated: "Nonsunt Inventi to John S. Shipley and Rochelle D. Shipley, his wife, on the 26th day of June, A.D., 1983."

7. On July 3, 1983, First Federal by praecipe, requested the issuance of an execution writ Levari Facias, for sale of the Shipleys' property by the Sheriff. Said writ, which was signed by the Prothonotary and witnessed by the Honorable Albert J. Stiftel, was received by the Sheriff on July 8, 1983. Pursuant to said writ, the real property of the Shipleys at 609 Wildel Avenue, Minquadale, New Castle, Delaware, was advertised in the News Journal and New Castle Eagle papers for sale on September 13, 1983. The sale was stayed and the Lev. Fac. writ was returned on September 19, 1983, to the Prothonotary.

8. On September 21, 1983, an alias Lev. Fac. writ was issued by the Prothonotary commanding the sale of the real property of Mr. and Mrs. Shipley in execution. Again the sale was advertised as before. The sale was stayed and the writ was returned to the Prothonotary on November 16, 1983.

9. On January 18, 1984, a First Pluries Lev. Fac. writ was issued by the Prothonotary for sale of the real property of Mr. and Mrs. Shipley. Again the sale was advertised in the newspapers as before. The sale was stayed and the writ was returned to the Prothonotary on March 1, 1984.

D.I. 68:A-2-A-7 (Affidavit of Michael P. Walsh).⁴

The basic averments set forth in the Sheriff's affidavit are not disputed in plaintiffs' complaint. Plaintiffs allege that "service of process was attempted by Defendant, sic Walsh, his servants, agents, employees, or deputies" pursuant to Delaware Superior Court Civil Rule 4(f)(4) (hereinafter "Rule 4(f)(4)").⁵ D.I. 1:¶ 6. This rule provides that "in actions begun by scire facias, 2 returns without service of 2 consecutive writs shall constitute legal and sufficient service." This provision for constructive service became the basis on which the default judgment was entered in the scire facias proceeding by the Prothonotary pursuant to Delaware Superior Court Rule 55(b)(1) after receiving a request for entry of judgment from First Federal's attorney. D.I. 67:A-11.⁶ Plaintiffs maintain that they "were never served a summons nor were they ever notified of the existence of the mortgage foreclosure action." Id.

The Sheriff caused a circular to be posted in the Shipleys' yard in anticipation of the first sale that was scheduled for September, 1983 and this is how the Shipleys first learned that a default judgment had been entered.⁷ D.I. 1:¶ 6. The circular is captioned in bold large typeface — "SHERIFF'S SALE". It goes on to describe the Shipleys' property. The bottom of the circular contains the following bold faced print: "SEIZED AND TAKEN IN EXECUTION AS THE PROPERTY OF JOHN S. SHIPLEY AND ROCHELLE D. SHIPLEY, HIS WIFE, AND TO BE SOLD BY MICHAEL P. WALSH, SHERIFF." A notable feature of the circular is the absence of any notice to the homeowners, in this case the Shipleys, of the availability of any legal process to set aside the impending real estate transaction.

On January 24, 1984, the Shipleys filed in Delaware Superior Court a document captioned, "Petition for Relief from Judgment, or to Strike Judgment, or Declaratory Relief Stating that Judgment Was Never Entered, or to Stay Sheriff's Sale." D.I. 97:A (Exhibit 7). The purpose of the Petition was to set aside the default judgment that had been entered in early July of 1983, and to stay any further threatened sale of their property. The Petition was opposed by First Federal. A hearing was held before Superior Court Judge Bifferato and shortly thereafter, the Shipleys lodged a complaint against him in the Court of the Judiciary (a judicial disciplinary body in the State of Delaware), leading Judge Bifferato to recuse himself from the matter before him. D.I. 97:A (Exhibit 10).

The case was assigned to Judge Martin who on March 17, 1984 vacated and voided the default against the Shipleys, after he determined that the default judgment entered against them had been entered prematurely. D.I. 97:A (Exhibit 11). Judge Martin held that constructive service pursuant to Rule 4(f)(4) on the Shipleys was not achieved until June 28, 1983, and thus, the Shipleys should have been given twenty days after this date to respond before a default judgment was entered. This favorable decision for the Shipleys was appealed by them to the Delaware Supreme Court and that appeal was subsequently dismissed.

On April 17, 1984, First Federal, through its attorney Green, renewed its motion for a default judgment. D.I. 97:A ...