IN THE SUPERIOR COURT OF THE STATE OF DELAWARE M&T BANK, ) ) Plaintiff, ) ) v. ) C.A. No. N16L-02-093 CLS ) ROBIN WATKINS, ) Defendant. ) )

ORDER

On this 29th day of July, 2016, and upon consideration of Defendant Robin Watkin‟s (“Defendant”) Motion to Dismiss and Plaintiff M&T Bank‟s (“Plaintiff) Response thereto, the Court finds as follows:

Plaintiff filed this scire facias sur mortgage action against Defendant on February 15, 2016, arising out of Defendant‟s alleged breach by non-payment of monthly installments due under a mortgage executed by Defendant and pertaining to real property located in Bear, Delaware. In its complaint, Plaintiff alleges that Defendant executed and delivered the mortgage-at-issue to Meridian Bank on June 28, 2013, which mortgage was thereafter duly assigned to Plaintiff by Meridian Bank for valuable consideration.^[1] The complaint contains a demand that Defendant answer by affidavit pursuant to 10 Del. C. § 3901.

and, as recognized by Defendant, entitles “the mortgagee, the mortgagee‟s heirs, executors, administrators, successors or assigns” to institute a mortgage foreclosure action against, inter alia, the mortgagor.6

Plaintiff argues that (i) it has standing to bring this action pursuant to 25 Del. C. §§ 2101 et seq., and that (ii) under Delaware law, the mortgagee‟s right to foreclose by an action in scire facias sur mortgage is based only upon the mortgage, which is a matter of record, and not the note. Furthermore, Plaintiff argues that, because the available defenses in a scire facias sur mortgage action are limited to payment, satisfaction, absence of seal, or a plea in avoidance of the deed, the status of the note is irrelevant.

As a threshold matter, to the extent that Defendant‟s motion contests the validity of the mortgage assignment to Plaintiff, Delaware courts, including this Court, have consistently held that where, as here, there has been no showing by the defendant that he or she is a party to a mortgage assignment or is a third party beneficiary to the assignment or that he or she has suffered any legal harm as a result of the assignment, “the [defendant] has no legally cognizable interest in an assignment and therefore is not in a position to complain about it.”7 Therefore, it is Defendant who lacks standing to contest the assignment.

6 10 Del. C. § 5061(a). 7 Branch Banking & Trust Co. v. Eid, 2013 WL 3353846, at *4 (Del. Super. June 13, 2013) (citing CitiMortgage, Inc. v. Bishop, 2013 WL 1143670 (Del. Super. Mar. 4, 2013)).

As to Defendant‟s assertion that Plaintiff lacks standing to bring this mortgage foreclosure action, Delaware statutory law explicitly provides that it—as an assignee of the mortgagee—can.8 Furthermore, Delaware case law has made it clear that “[s]cire facias sur mortgage actions are in rem proceedings and „are based upon the mortgage, not the [n]ote.‟”9 Therefore, where Plaintiff‟s complaint plainly alleges that Defendant obtained a mortgage on her property, that the mortgagee then assigned its entire interest in said mortgage to Plaintiff for valuable consideration, and that Defendant is now in breach of the mortgage for non- payment, Plaintiff has properly instituted a scire facias sur mortgage action that is sufficient to survive Defendant‟s motion to dismiss.

Finally, to the extent that Defendant‟s motion asserts any other defense not directly related to underlying mortgage transaction, such defenses are not recognized by Delaware courts as being applicable under the circumstances.10 And, to the extent that Defendant‟s motion references any material outside of the complaint, such material is not properly considered on a motion to dismiss.

8 10 Del. C. § 5061(a). 9 Deutsche Bank Nat’l Trust Co. v. Moss, 2016 WL 355017, at *3 (Del. Super. Jan. 26, 2016) (quoting HSBC Mortgage Corp. (USA) v. Bendfeldt, 2014 WL 600233, at *2 (Del. Super. Feb. 4, 2014), aff’d sub nom. Bendfeldt v. HSBC Mortgage Corp. (USA), 2014 WL 4978666 (Del. Oct. 7, 2014)); see Davis v. 913 N. Mkt. St. P’ship, 1996 WL 769326, at *1 (Del. Super. Dec. 12, 1996) (“The [] note and the mortgage confer separate rights and obligations. Thus, the [] note is a separate matter and is not part of the foreclosure action on the mortgage.”). 10 See JPMorgan Chase Bank v. Smith, 2014 WL 7466729, at *3-4 (Del. Super. Dec. 15, 2014) (quoting Bishop, 2013 WL 1143670, at *5) (“Delaware courts recognize the defenses of payment, satisfaction or avoidance.”).

Accordingly, for the foregoing reasons, Defendant‟s Motion to Dismiss is DENIED.

IT IS SO ORDERED.

/S/Calvin l. Scott The Honorable Calvin L. Scott, Jr. cc: Prothonotary