Citifinancial, Inc. v. Hancock, et al.
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SUPERIOR COURT OF THE STATE OF DELAWARE F R E D S. S ILVERMAN JU D G E N E W C A S T L E C OUNTY C OURTHO USE 500 N. K I N G S T R E E T , S U I T E 10400 W I L M I N G TO N , D E L A W A R E 19801 (302) 255-0669 Submitted: July 10, 2003 Decided: November 25, 2003 John J. Thomp son, Esquire Levine & Thompson 1205 King Street Wilmington, DE 19801 Leo J. Ramu nno, Esquire 1205 N. King Street Wilmington, DE 19801 Re: Citifinancial, Inc. v. Hancock, et al., C.A. No. 01L-06-083-FSS Upon Motion for Reargument GRANTED, in part Dear C ounsel: After the c ourt issued its J une 27, 20 03 letter orde r, Plaintiff filed a timely Motion for Reargument. The letter order, in summary, said the court was not satisfied that Plaintiff held an enforceable mortgage. In contrast to what is expected in a mortgage foreclosure the debt instruments were irregular. The letter order also relied heavily on Plaintif f s hav ing faile d to file a post-tria l brief, as ordere d. The Motion for Reargument, in effect, is the overdue, post-trial brief. The court appreciates Defendants opposition to reargument. But the court recalls that the first thing D efendan ts counsel h ad to do af ter he appe ared was to get Def endants d efault lifted. In this case , the cou rt is not tre ating eith er side s defau lts as fata l. Plaintiff, finally, contends that it properly filed and executed two notarized Citifinancial, Inc. v. Hancock, et al., C.A. No. 01L-06-083-FSS Upon Motion for Reargument November 25, 2003 Letter/Order Page 2 mortgages with the Recorder of Deeds. The first was taken out in August and the second in Nov embe r, 1998 . The se cond tr ansactio n allege dly refina nced th e Aug ust mo rtgage. In their Affidavit of Defense, Defendants swore that they had a mortgage with Plaintiff, but claimed the Nov ember m ortgage w as invalid. Pla intiff points o ut that Def endants cannot explain why the first payment after the November refinancing was the new, lower amount. Plaintiff further asserts that Defendants acknowledge that they owe Plaintiff mon ey. The court continues to questio n the Nov emb er 19 98 transa ction s va lidity, and the court is not satisfied that Plaintiff s record keeping is sufficiently reliable. The court s characterization of Plaintiff s records is charitable, considering the testimony of Plaintiff s notary to the effect that she notarized documents that were not signed or ratified in her presence. But despite the gaps in the record, it is probable that Plaintiff loaned at least $215,367.18 to Defendants in August 1998. Defendants virtually admit as much in their Affidavit of Defense. That goes for both Defendants, despite the fact that Linda H ancock d id not sign th e Augu st 1998 no te. Taking h er admitted c onduct into accou nt, the co urt con siders L inda H ancoc k estop ped fro m den ying the A ugust 1 998 no te. She signed the m ortgage, received the loan p roceeds and participated in th e loan s repayment, until default. She cannot deny the August 1998 debt and she is on the August 1998 m ortgag e, along with W alter Ha ncock . The court granted partial summary judgment for $200,000 to Plaintiff before trial. The court will enter an order, upon submission and approval as to form, granting final judgment to Plaintiff for $215,367.18, minus all payments made by Def endants, plus inter est at 8.75 16% on th e rem ainin g princip al, an d $5,500 in att orne ys fees. For the foregoing reasons, Plaintiff s July 7, 2003 Motion for Reargument is GRANTED, as to the August 1998 note and mortgage. IT IS SO ORDERED. Very truly yours, FSS/lah oc: Prothonotary (Civil Division) pc: Ms. Melanie Williams, Civil Case Manager
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