THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

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Sherilyn Manning
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1 THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY INDYMAC BANK, F.S.B., Plaintiff(s, v. C.A. NO. 05L FSS PHILLIP A. DYE, REBECCA J. DYE and SOLOWIZ TRUST INTERNATIONAL, Defendant(s. Submitted: January 9, 2008 Decided: April 18, 2008 ORDER Upon IndyMac s Motion for Summary of Judgment GRANTED Upon Borrowers Cross-Motions and Counterclaims DENIED 1. This is a mortgage foreclosure. IndyMac Bank, F.S.B., the lender and mortgagor, has moved for summary judgment. 2. The borrowers, Phillip A. and Rebecca J. Dye, 1 who are pro se, have filed counterclaims, dispositive motions and other assorted pleadings. 3. For purposes of the lender s motion for summary judgment, the court must view the evidence in the light most favorable to the borrowers. To the extent defaulted. 1 A third borrower, Solowiz Trust International, which appears to be a shell, has

2 there is an evidentiary dispute over a material fact, the court must assume that the evidence supports borrowers position. The court, however, is not obligated to accept either side s conclusions or unsupported allegations Viewing the evidence in the proper light, it appears that the Dyes borrowed $100, from the lender on October 20, The borrowers signed a promissory note in the principal amount, payable at 6.875% interest, per annum, in monthly installments beginning December 1, 2000 until November 1, The note was secured by a mortgage on real property located at 403 Union Church Road, Townsend, Delaware. The pleadings suggest that it was a purchase money mortgage. 5. Borrowers made monthly payments beginning December 2000 through September They missed their October 2001 payment. Then, they made the November and December 2001 payments. From that point, until October 2005, they paid nothing on the loan. In October 2005 they made a payment, which the lender attributed to the missed payment in October Essentially, therefore, borrowers have been in default since January The mortgage includes default, acceleration and penalty clauses costs and attorney s fees, which all apply in the circumstances presented here. 7. The evidentiary basis for the findings made above is public records, 2 Martin v. Nealis Motors, Inc., 247 A.2d 831, 833 (Del See also Ingram v Stone Associates LLC, 2004 WL (Del. Super..

3 affidavits and other verified pleadings submitted by the lender. For example, an auditor for the lender submitted an affidavit and a chart showing borrowers payment history through March As explained below, the lender s pleadings are unrefuted. 8. At the court s insistence, borrowers answered the complaint, after a fashion, on June 12, Their responsive pleading is captioned, Response To Complaint By Affidavit By Special Appearance Under Protest. The complaint demanded that borrowers answer through the affidavit called for by 10 Del. C Their pleading s caption notwithstanding, borrowers answer is not by affidavit. 9. In their Response, borrowers admit they signed and delivered the mortgage and note on October 20, 2000, as alleged in paragraphs 3 and 4 of the complaint. Borrowers also admit the allegations in paragraph 6 that they failed to pay the monthly installments after demand, and that the lender notified them of its intent to accelerate the loan. 10. Furthermore, in borrowers January 10, 2006, Affidavit Of Support for Motion to Dismiss, 4 the Dyes tacitly admit they borrowed the money, and they signed the note and mortgage. They contend that [a]bout 9 months into the alleged 3 See also Super. Ct. Civ. R. 3(b. 4 The Affidavit is neither sworn nor notarized.

4 agreement, they learned that the lender had sold the loan. Borrowers, in their Counter Claim, contend not only that they do not have to repay the loan, the lender owes them. Borrowers argument is, at best, frivolous. In any event, the Dyes refer to the transaction as a loan, and to IndyMac as the lender. 11. Because, as presented above, borrowers failed to answer the complaint by affidavit, lender is entitled to judgment by default. 5 Similarly, because borrowers have failed to respond to lender s request for admissions and other discovery requests, the facts are deemed admitted. 6 More importantly, as also presented above, borrowers have largely admitted, directly, the lender s allegations and they have not presented any evidence tending to show that they have not been in default on the mortgage for years. Borrowers have not presented proof of payment, verified or otherwise. 12. Instead of presenting evidence tending to show that they did not borrow the money, or they did not sign the papers or they did payoff the loan, borrowers have filed a series of motions to dismiss and various homespun pleadings that are virtually unintelligible. Mostly, they are gibberish. 7 (Del Super. Ct. Civ. R Super. Ct. Civ. R. 36. See also Bryant v. Bayhealth Medical Center, Inc., 937 A.2d See e.g. Dkt.71: Answer to Plaintiff s motion for summary of judgment mandatory judicial-notice of Adjudicated Facts: Abatements in Action with common law-rules and operational Law: Civil Case 05L FSS is Second Hearsay and is Not Admissible: Order to

5 13. To the limited extend that borrowers pleadings are comprehensible, they are inaccurate in important ways. For example, in borrowers March 29, 2008 Motion For A Default Judgment with Declaratory and Permanent Injunctive Relief And Compensation And Damages, borrowers allege: To date The Docket Record in this case shows that Plaintiff IndyMac Bank, F.S.B. failed to answer, respond, rebut, challenge or allege any opposition to the declarations claimed in the Counter Claim. Actually, the lender filed a response on March 27, Attached to borrowers February 14, 2006, Counter Claim is a letter from Todd Ellis Swanson, a C.P.A., who was licensed in South Carolina and North Carolina. 9 Mostly, the letter is a ramble. At its core, the letter assumes: IndyMac Bank, F.S.B. never lent one penny to purchase the promissory note. Dismiss with Prejudice Civil Number 05L FSS: Take Notice. The pleading, itself, is a series of Declarations. Declaration One of Non Consent provides: I the private natural man called Phillip-Allen: Dye: I the private natural woman called Rebecca-Jane: Dye, a sovereign without subjects holding the de-jure office of and for the de-jure sovereign private natural people of the de-jure seventh judicial-district by and the through Phillip-Allen: Dye Family Great Seal: the Phillip-Allen: Dye Family Nation Flag: by and the through security and protection of the de-jure Delaware Republic Great Seal, Flag and Organic Constitution: by and through the security and protection of the de-jure Organic Constitution for the United States of America Republic confederated-government:... 8 See Dkt It is not part of the record and the court is not relying on it, but it appears that the letter s author was suspended from practicing accounting due to his participation in an unlawful mortgage debt elimination scheme involving other lenders, but under similar circumstances as here. See Todd Ellis Swanson, No , (N.C. St. Bd. of Certified Public Accountant Exam rs. Aug. 21, 2006 (ORDER (permanent revocation of Swanson s Certified Public Accountant certificate; Todd Ellis Swanson, No (S.C. Bd. of Acct cy. Oct. 27, 2005 (ORDER (three-year revocation of Swanson s license.

6 According to the letter, IndyMac Bank, F.S.B. deposited Phillip A and Rebecca J Dye s $100, promissory note into a checking account,.... In that way, the letter concludes, IndyMac Bank, F.S.B. created $100, of new money. Putting it another way, the letter says: It appears IndyMac Bank, F.S.B. refused to lend Phillip A and Rebecca J Dye... money and recorded the $100, loan from Phillip A and Rebecca J Dye to IndyMac Bank, F.S.B., which is an $100, deposit, and when IndyMac Bank, F.S.B. repaid Phillip A and Rebecca J Dye by returning the $100, to Phillip A and Rebecca J Dye, the lender/alleged borrower was repaid the loan and the transaction was complete. 15. In summary, the letter s thrust is that when the Dyes signed the promissory note as Borrower, they in effect loaned IndyMac $100,000. When IndyMac then parted with its $100,000, that simply was IndyMac repaying the loan from the Dyes to IndyMac. 16. The letter is based on unsupported facts. As presented, the borrowers admit they borrowed the money and they do not deny that they made payments on the loan for a year. Moreover, the letter is ipse dixit (he himself said it and it is nonsense. An accountant s simple act of calling people who borrow money lenders can no more transform them into lenders than calling the daytime night will make it dark outside. The accountant s crude legerdemain does not create a legitimate, material dispute of fact, precluding summary judgment.

7 17. The unrefuted conclusion here is that the Dyes signed a note, borrowed $100,000 and the loan was secured by a mortgage. There is no legitimate dispute over the fact that the Dyes are borrowers and IndyMac is their lender. And, the loan has been in default for years. For the foregoing reasons, the lender has presented sufficient evidence showing that it is entitled to foreclose. Borrowers, in contrast, have presented no evidence upon which a fact-finder could rule in their favor. Accordingly, Plaintiff s Motion for Summary Judgment is GRANTED. To the extent they have not already been denied, all of the Dyes motions and counterclaims are DENIED. Upon submission, the court will enter an updated verison of the proposed order attached to lender s December 14, 2007 motion. IT IS SO ORDERED. /s/ Fred S. Silverman Judge Cc: Prothonotary (Civil Thomas D. Barnett, Esq. Neil P. Dignon, Esq. Phillip A. & Rebecca J. Dye

IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN THE SUPREME COURT OF THE STATE OF DELAWARE H. DAVID MANLEY, ) ) No. 390, 2008 Defendant Below, ) Appellant, ) Court Below: Superior Court ) of the State of Delaware in v. ) and for Sussex County ) MAS