Important Lessons for Mortgage Lenders in Delaware

by Pepper Hamilton LLP
Contact

Pepper Hamilton LLP

In a recent opinion, the Supreme Court of Delaware held that a mortgage holder must be entitled to enforce the underlying obligation that secures the mortgage in order to foreclose on the mortgage. As a result of the court’s decision in Shrewsbury v. Bank of New York Mellon, 160 A.3d 471 (Del. April 17, 2017), mortgage lenders in Delaware should be sure to clearly document the assignment of mortgage loans and include the underlying promissory note in the assignment.

Shrewsbury v. Bank of New York Mellon

In Shrewsbury, The Bank of New York Mellon (the Bank) brought a foreclosure action against J.M. Shrewsbury and Kathy Shrewsbury. In May 2007, Shrewsbury signed a promissory note in favor of Countrywide Home Loans, Inc. and simultaneously granted a mortgage to Mortgage Electronic Registration Systems, Inc., which acted as nominee for Countrywide. In July 2010, Shrewsbury stopped making payments on the promissory note, and, in June 2011, Registration Systems assigned the mortgage to the Bank.

The Bank filed a mortgage foreclosure proceeding in the Superior Court, and, in their response to the complaint, the Shrewsburys argued that the Bank had to show that it held the promissory note (in addition to the mortgage) in order to succeed on the mortgage foreclosure claim. The Superior Court rejected the Shrewsburys’ argument and granted summary judgment in favor of the Bank, finding that the Bank only needed to show a valid assignment of the mortgage. In the Superior Court proceedings, the Bank did not produce a copy of the promissory note, nor did the Bank claim to be the holder of, or entitled to enforce, the promissory note.

On appeal, the Delaware Supreme Court cited a long history of Delaware case law in which the court found that the “underlying debt or obligation is essential to a mortgage’s enforceability.” The court also relied on the U.S. Supreme Court case Carpenter v. Longan, 83 U.S. 271 (1872), which held that a “note and a mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” The court emphasized that a question of fact existed as to whether the Bank was entitled to enforce the obligations created by the promissory note. The court reversed the Superior Court’s judgment and remanded the matter for further consideration.

In a noteworthy dissent, Chief Justice Strine respectfully disagreed with the majority opinion, citing to Delaware Code title 10, section 5061, and explaining that the Delaware Code allows foreclosure by the mortgage holder and does not require that a mortgagee also show that it holds the promissory note. Justice Strine explained that statutory requirements should not be imposed by the judiciary and that the majority’s opinion could complicate the pleading requirements for future mortgage foreclosure proceedings.

Pepper Points

  • Foreclosing lenders should include language in a foreclosure complaint that references the underlying obligation and makes clear that the obligation is owed to the foreclosing lender.

  • Foreclosing lenders should attach the promissory note and any assignments thereof as exhibits to the foreclosure complaint.

  • A mortgage lender should ensure that, when it acquires a mortgage loan by assignment, all of the underlying obligations of the mortgage (i.e., the promissory note) are clearly included in the assignment.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.