Delaware State Housing Authority v. Ievoli ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DELAWARE STATE HOUSING ) C.A. No. N15L-12-074 CLS
AUTHORITY, )
) Tax Parcel No. 073540234
Plaintiff, )
) Sci. Fa. Sur Mortgage Action
v. )
) Mortgage Instrument
MICHELLE R. IEVOLI, ) 20011217-0106929
) Assignment Instrument
Defendant. ) 20011217-0106930
)
)
Date Submitted: July 26, 2018
Date Decided: July 31, 2018
On Defendant Michelle R. Ievoli’s Request for Continuance of Stay
On Writ of Possession
DENIED.
OPINION
Chase N. Miller, Esquire, McCabe, Weisberg & Conway, P.C., 1407 Foulk Road,
Suite 102, Wilmington, Delaware, 19803. Attorney for Plaintiff.
Michelle R. Ievoli, pro se Defendant.
Scott, J.
1
This action arises from a scire facias sur mortgage action. Plaintiff Delaware
State Housing Authority (DSHA) filed the action against Michelle Ievoli (Ievoli) in
2015. The property was sold at Sheriff’s Sale in December 2017.
Facts and Procedural Background
The facts pertinent to Defendant’s request are as follows. DSHA initiated
foreclosure on Defendant’s home in 2015. A final judgment in favor of DSHA was
entered in this action on September 25, 2017. Ievoli did not appeal that judgment.
A Sheriff’s Sale of the home was completed in December 2017 and confirmed in
January 2018. DSHA was the winning bidder at the sale, and the Sheriff’s Deed was
recorded in February 2018. DSHA then sought and was granted a Writ of Possession
on May 29, 2018, with no action to be taken for 60 days. Also on May 29, 2018,
Ievoli filed a pro se complaint in this Court claiming Negligence on the part of
DSHA related to the mortgage of the property.1 At the same time of filing the
complaint Ievoli requested a stay on the writ of possession. This request was denied.
Ievoli’s Negligence action seeks monetary damages including lost wages, medical
bills, damage to her creditworthiness, and legal costs.2
1
Citations to the complaint infra refer to this pro se complaint.
2
Compl. at 6.
2
Parties Assertions
Ievoli filed this emergency request seeking a continuance of the stay on the
Writ of Possession pending adjudication of a negligence action. Ievoli’s civil suit
alleges DSHA was negligent in its selection and supervision of Bank of America
(BOA) as a mortgaging servicer. Ievoli highlights newspaper articles and judgments
against BOA as proof DSHA had notice of questionable practices ongoing with
BOA’s mortgage business. Ievoli asserts that DSHA owed a duty to “stop ongoing
illegal actions.”3 Ievoli’s complaint, in brief, seeks to hold DSHA liable for the
actions of its subcontractor BOA.4
DSHA argues the Court has previously denied a stay on this Writ of
Possession. DSHA urges that under the four-prong test adopted by this Court and
the Delaware Supreme Court Ievoli’s motion fails and should be denied. DSHA
argues there is little chance of success on the merits for Ievoli’s complaint. DSHA
argues that Ievoli’s complaint is procedurally barred by the statute of limitations, res
judicata, and collateral estoppel. As to the merits of the complaint, DSHA argues
Ievoli’s complaint fails to show DSHA owed a duty of care to Ievoli.
3
Compl. at 2.
4
Id.
3
DSHA urges that as the complaint seeks only monetary damages there is no
chance of irrevocable injury should the stay be denied. DSHA points to the final
adjudication of this matter as evidence Ievoli will not be injured. DSHA claims they
are now the owners of the property, and as such they are entitled to possession.
DSHA argues that even if successful on the merits, Ievoli’s award would be
monetary and independent from the result of this action.
DSHA claims they will continue to suffer substantial harm if the stay is
granted. DSHA indicates they continue to be financially liable for the home as Ievoli
has not made payments since 2015.
DSHA finally argues that public interest will be harmed if the stay is granted.
DSHA urges that the public is best served by speedy resolution of title and
possession issues. DSHA urges that lingering property disputes often result in blight
and other negative community impacts.
Standard of Review
Ievoli’s motion is not an appeal from the judgment in the foreclosure action,
but rather seeks to stay further proceedings pending the outcome of a new action.
However, the Court finds the stay pending appeal standard of review to be relevant
to the instant case.
4
In determining whether to stay a decision pending appeal this Court and the
Delaware Supreme Court have adopted the four-prong test utilized in Evans v.
Buchanan.5 The test requires the Court “(1) to make a preliminary assessment of
likelihood of success on the merits of the appeal; (2) to assess whether the petitioner
will suffer irreparable injury if the stay is not granted; (3) to assess whether any other
interested party will suffer substantial harm if the stay is granted; and (4) to
determine whether the public interest will be harmed if the stay is granted.”6 The
Court must analyze all four prongs of the test in determining whether to grant a stay.7
Analysis
Likelihood of success of Ievoli’s negligence action
In her complaint Ievoli claims one ground for relief, negligence. The Court
must first review any procedural bars to Ievoli’s action before reviewing the merits
of her case. Based on the complaint, and reviewing the complaint in light most
favorable to Ievoli, the Court in finds 10 Del. C. §8106 to be applicable. Under the
statute “no action based on a detailed statement of the mutual demands in the nature
of debit and credit between parties arising out of contractual or fiduciary relations,
5
Evans v. Buchanan, 435 F.Supp. 832, 841–42 (D.Del.1977).
6
Kirpat, Inc. v. Delaware Alcoholic Beverage Control Comm'n, 741 A.2d 356, 357
(Del. 1998).
7
Id.
5
[…] shall be brought after the expiration of 3 years from the accruing of the cause
of such action.”8
Ievoli’s complaint alleges actions dating from 2012 through November of
2014 constituted negligence on the part of DSHA. 9 The three year statute of
limitations would require any action brought under the contract between Ievoli and
DSHA to be brought before November 2017. Without making a final judgment on
the negligence action it appears that the complaint is procedurally barred by the
statute of limitations.
Moving to the merits of Ievoli’s claim of whether DSHA should be held liable
for the actions of its subcontractor, the Court must determine if a duty was owed to
Ievoli. Ievoli’s negligence complaint appears to rely on either the doctrine of
respondeat superior or negligent hiring and supervision. Under respondeat superior,
an employer can be held liable for the negligent actions of his employee. Similarly,
under a theory of negligent hiring and supervision “the employer is negligent in
giving improper or ambiguous orders or in failing to make proper regulations, or in
the employment of improper persons involving risk of harm to others, or in the
8
10 Del. C. § 8106.
9
See generally Compl.
6
supervision of the employee's activity.”10 To succeed on either of these theories it
is necessary to conclude that BOA was an agent under the direct control of DSHA.
If a party is subjected to only general control and direction under a contract,
that party is generally deemed to be an independent contractor. 11 Delaware
recognizes the general rule that a “contractee will not be held liable for the torts of
an independent contractor which are committed in the performance of the contracted
work.”12 However, if the “contractee retains control over the activities of an
independent contractor, the owner or contractee will be held liable for the torts of
the independent contractor.”13
The Court is not persuaded that Ievoli’s claim will be successful. Without
deciding the merits of Ievoli’s complaint, the case as presented in the complaint is
not likely to be successful in holding DSHA liable for failing to oversee BOA.
10
Simms v. Christina Sch. Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30,
2004).
11
Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997).
12
Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997).
13
Id.7
Possibility of irreparable injury if the stay is not granted
In reviewing the possibility of irreparable injury, the Court reviews the record
in this case and Ievoli’s complaint. DSHA is the legal owner of the home. Ievoli
remains in possession of the home.
Ievoli’s complaint seeks an award of monetary damages from DSHA, it is not
an appeal of the foreclosure for which a final judgment has been made. Ievoli may
feel that the loss of the home would be an irreparable injury, but allowing DSHA to
take possession of the property does not preclude Ievoli from pursuing the
negligence suit.
Possibility of harm to DSHA and the public
DSHA argues that Ievoli has resided on the property since June 1, 2015,
without making payments. DSHA claims they remain financially liable for the
property including paying taxes and insurance. To allow Ievoli to reside on the
premises would continue to harm DSHA by requiring them to remain liable for the
property.
The scire facias sur mortgage process provides an opportunity for the parties
to litigate many of the issues presented in Ievoli’s negligence complaint. This
process requires the mortgagor “appear before the Court to show cause, if there is
any, why the mortgaged premises ought not to be seized and taken in execution for
8
payment of the mortgage money with interest[.]”14 That process is now complete,
and this Court has entered Judgment in favor of DSHA. Ievoli’s negligence
complaint cannot now serve to show cause why the property ought not be delivered
into the possession of DSHA. The public interest requires this Court to adhere to
the statutory process and judicial precedent.
Conclusion
The property in question has been the subject of litigation since the initial
filing of foreclosure on December 16, 2015. The parties were each granted an
opportunity to present their case. This Court entered a final judgment in September
2017. The Court granted a Writ of Possession for the property in May of this year
with no action to be taken for 60 days. The scire facias sur mortgage action has now
come to a conclusion and Ievoli must cede possession of the property.
Without reaching a decision in Ievoli’s negligence suit, the Court is not
convinced of the likelihood of success on the merits. Ievoli will not be subjected to
irreparable injury should DSHA take possession of the property. However, DSHA
will continue to sustain harm should Ievoli continue to occupy the home.
14
10 Del. C. §5061.
9
For the foregoing reasons, Defendant’s Request for Continuance of Stay on
Writ of Possession is DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
10