Natoinstar Mortgage LLC d/b/a Champion Mortgage Company v. Bryan J. Oneschuk, Personal Representative of the Estate of Mary Jean Oneschuk ( 2015 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
KIM E. AYVAZIAN CHANCERY COURTHOUSE
MASTER IN CHANCERY 34 The Circle
GEORGETOWN, DELAWARE 19947
AND
NEW CASTLE COUNTY COURTHOUSE
500 NORTH KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19980-3734
June 29, 2015
Lisa Keil Cartwright, Esquire
Atlantic Law Group, LLC
913 N. Market Street, Suite 1011
Wilmington, DE 19801
Bryan J. Oneschuk
22 Gene Avenue
New Castle, DE 19720
RE: Nationstar Mortgage LLC d/b/a Champion Mortgage Company v. Bryan J.
Oneschuk, Personal Representative of the Estate of Mary Jean Oneschuk,
Edward J. Oneschuk, Jr., Heir, Kenneth J. Oneschuk, Heir, Michael J.
Oneschuk, Heir, and Bryan J. Oneschuk, Heir
C.A. No. 9434-MA
Dear Counsel and Mr. Oneschuk:
Pending before me is a motion for summary judgment filed by Nationstar
Mortgage LLC d/b/a Champion Mortgage Company (hereinafter “Nationstar”) in
its in rem foreclosure complaint against Brian Oneschuk, personal representative of
the Estate of Mary Jean Oneschuk, Edward J. Oneschuk, Jr., heir, Kenneth J.
Oneschuk, heir, Michael J. Oneschuk, heir and Bryan J. Oneschuk, heir. For the
reasons that follow, I recommend that the Court grant summary judgment in favor
Page 1 of 5
of Nationstar in the amount of $152,586.39 plus interest after August 13, 2014, and
additional fees and costs that have accrued.
The record shows that on July 18, 2008, Mary Jean Oneschuk executed and
delivered to Wilmington Savings Fund Society, FSB (hereinafter “WSFS”) a
promissory note in the original principal amount of $270,000. The note was
secured by a mortgage on real property owned by Mary Jean Oneschuk at 22 Gene
Avenue, New Castle, Delaware, 19720. Thereafter, WSFS assigned its interest in
the mortgage to EverBank Reverse Mortgage LLC, which in turn assigned its
interest in the mortgage unto Plaintiff. The mortgage is a reverse mortgage. On
September 17, 2012, Mary Jean Oneschuk passed away, leaving the real property
to her heirs, Bryan J. Oneschuk, Edward J. Oneschuk, Kenneth J. Oneschuk, and
Michael J. Oneschuk. The Estate of Mary Jean Oneschuk was notified of the
mortgage default by certified letter dated December 2, 2013. As of November 30,
2013, the amount of debt was $147,908.87 plus interest, fees and costs. On March
11, 2014, Nationstar filed this in rem foreclosure action against Bryan J. Oneschuk,
the personal representative of the Estate of Mary Jean Oneschuk, and the four
individual heirs, to foreclose a mortgage not under seal as to real property located
at 22 Gene Avenue in New Castle, Delaware. Bryan filed an answer to the
complaint, admitting that his mother signed a reverse mortgage and might owe
something, but that neither he nor his brothers owe Nationstar any money. In
Page 2 of 5
addition, Bryan alleges that he has been trying to buy the real property from the
mortgage company since September 2013, to no avail. He requests that the Court
dismiss the complaint, determine the mortgage to be unenforceable, deny the entry
of judgment against any defendant, disallow attorney fees or costs, and disallow
any foreclosure sale of the property.
Nationstar has moved for summary judgment. Attached to its motion is the
affidavit of Nationstar’s counsel attesting that as of August 14, 2014, $152,586.39
was due on the mortgage plus interest after August 13, 2014 at the rate of 1.59%
per month, plus reasonable attorney fees of $13,969.05 at 5% of principal and
interest. In response, Bryan again denies that he or his brothers owe any money to
Nationstar. He offers to pay the fair market value of the property to the Plaintiff,
but not the loan balance because he claims that the real property is not worth what
is owed on the mortgage. Bryan requests that the motion for summary judgment
be denied and the foreclosure action dismissed.
In reviewing a motion for summary judgment, the Court examines the record
to determine whether genuine issues of material fact exist and to determine
whether the moving party is entitled to judgment as a matter of law. 1 The burden
is on the moving party to demonstrate that no issues of material fact are in dispute
and that the moving party is entitled to judgment as a matter of law. If the movant
1
Court of Chancery Rule 56(c)
Page 3 of 5
supports its claims, then the burden shifts to non-moving party to dispute the facts
by affidavit or similar proof.2
The adjustable rate mortgage executed by Mary Jean Oneschuk provided for
the acceleration of debt, i.e., the immediate payment in full of all sums secured by
the mortgage, if the borrower died and the property was not the principal residence
of at least one surviving borrower. The record is undisputed that Mary Jean
Oneschuk was the sole borrower and that she died on September 17, 2012.
Therefore, Nationstar was entitled to accelerate the debt and demand immediate
payment. That a debt is owed by the Estate of Mary Jane Oneschuk is not
disputed. It is irrelevant that neither Bryan nor his three brothers owe any money
to Nationstar. They are not the mortgagor, and a defense to a mortgage foreclosure
action is limited to defenses to the mortgagor’s obligation under the mortgage.3
Since Nationstar has demonstrated that the mortgage was properly accelerated and
that the default has not been cured, Nationstar is entitled to judgment in its favor as
a matter of law.
In its reply, Nationstar asserts that attached to Bryan’s Answer was a
recorded copy of a deed executed by the individual heirs of the Estate of Mary Jean
Oneschuk and the personal representative, granting title to the real property to
2
See Tanzer v. International Gen. Indus., Inc., 402 A.2d 382 (Del. Ch. 1979).
3
See McCafferty v. Wells Fargo Bank, N.A., 2014 WL 7010781, at *2 (Del. Dec. 8,
2014) (footnote omitted).
Page 4 of 5
Bryan. The Court has no record of this document. I recommend, therefore, that
when this report becomes final, Nationstar be permitted to file an Amended
Complaint, with a copy of the recorded deed attached thereto, in order to proceed
against Bryan, as personal representative of the Estate of Mary Jean Oneschuk, and
as legal title owner of the property.
In conclusion, I recommend that the Court grant summary judgment in favor
of Nationstar in this in rem foreclosure action. I am waiving a draft report, and
referring the parties to Court of Chancery Rule 144 for the process of taking
exception to a Master’s Final Report.
Respectfully,
/s/ Kim E. Ayvazian
Kim E. Ayvazian
Master in Chancery
KEA/kekz
cc: Edward J. Oneschuk, Jr.
Kenneth J. Oneschuk
Michael J. Oneschuk
Secretary of Housing and Urban Development
Page 5 of 5