Shallcross Mortgage Company v. Ewing

SUPERIOR COURT
of the
STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse
Resident Judge 38 The Green
Dover, DE 19901
Telephone (302)735-2111

Mr. Charles J. Brown, Esquire Mr. Matthew Ewing
Gellert Scali Busenkell & Brown, LLC Ms. Patricia Ewing
1201 N. Orange Street, Suite 300 436 Halltown Road
Wilmington, DE 19801 Marydel, DE 19964

Submitted: August 1, 2024
Decided: August 9, 2024

RE: Shallcross Mortgage Company v. Matthew Ewing and Patricia Ewing,
K24L-02-005 JJC

Dear Mr. Brown and Mr. and Ms. Ewing:
This letter provides the Court’s decision after a bench trial held on August 1st.
At trial, the parties presented their positions regarding Plaintiff Shallcross Mortgage
Company’s ejectment action against Matthew and Patricia Ewing. The property at
issue is a home located at 436 Hall Town Road, Marydel, Delaware (hereinafter the
“property” or the “subject property”). For the following reasons, the Court enters
judgment in favor of Shallcross.
Standards
In a bench trial, the Court sits as the trier of fact.1 In that role, the trial judge
must judge the witnesses’ credibility and determine what weight to assign their
testimony and the other evidence of record. The Court is “free to accept or reject
any or all of the sworn testimony, as long as it consider[s] all of the evidence
presented.”2 The burden of proof is by a preponderance of the evidence in a civil
action such as this.3 The party who carries the burden of proof on an issue must
prove that issue to be more likely true than not.4
In this case, Shallcross seeks an order of ejectment under 10 Del. C. §6701.
That Section codifies the basic procedures for an ejectment action.5 Section 6701
requires the filing of a civil complaint and an answer as in other civil actions.6 It
does not contemplate a rule to show cause hearing used to resolve some other
common law and statutory writs.7 In an ejectment action, a plaintiff must prove two

1
Torres v. Bishop, 2021 WL 6053870, at *4 (Del. Super. Dec. 21, 2021).
2
Pardo v. State, 160 A.3d 1136, 1150 (Del. 2017).
3
Torres, 2021 WL 6053870, at *4.
4
Id.
5
See 10 Del. C. § 6701 (providing that an action in ejectment is tried as a routine civil action which
begins with the filing of a complaint and requires the defendant to file an answer within twenty
days, as he or she would in other civil actions, rather than requiring the Court to issue a rule to
show cause notice).
6
Id.
7
Here, Shallcross filed its complaint and appropriately awaited an answer from the Ewings. That
procedure is the appropriate mechanism for an action in ejectment because the plaintiff carries the
burden of proof. This procedure differs from a rule to show cause mechanism used for some other
extraordinary writs such as a writ of possession (where a petitioner seeks the return of real property
retitled after a duly executed and confirmed sheriff’s sale). In a rule to show cause hearing in a
petition for writ of possession for instance, the defendant/respondent carries the burden of
demonstrating why the holder of a sheriff’s deed does not have the right to possess the property.
Here, Shallcross appropriately filed a motion for default judgment when the Ewings failed to file
an answer. At the motion hearing, the Court granted the Ewings’ request for an additional three
weeks to file an answer. Thereafter, the Court, in recognition of the summary nature of an
ejectment proceeding, issued a scheduling order on April 19, 2024, with a discovery cutoff of July
1, 2024, and a trial date of August 1, 2024.
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elements: (1) that the plaintiff is out of possession, and (2) that he or she is entitled
to possession.8
Findings of Fact
After considering the trial testimony and exhibits entered in evidence, the
Court finds the following facts by a preponderance of the evidence. Shallcross held
a mortgage on the subject property. Shallcross’s mortgagee, TurnKey Investments,
LLC (“Turnkey”), owned the property subject to that mortgage. At some point,
Turnkey entered a contract to sell the subject property to the Ewings, who occupied
the property without a lease or rental agreement. Turnkey and the Ewings never
closed on the sale, however, and Turnkey later defaulted on its mortgage. Shallcross
then filed and recorded a deed in lieu of foreclosure covering the subject property in
October 2023. The Ewings have not surrendered occupancy and still reside on the
property.
The trial evidence failed to demonstrate the Ewings’ right to occupy the
property by title or lease. As to the lack of any rental agreement, Mr. Ewing
conceded that Turnkey had filed a summary possession action in the Justice of the
Peace Court in December 2022 to attempt to recover possession. He acknowledged
that the Justice of the Peace Court dismissed the case because there was no rental
agreement between the parties.
Finally, Mr. Ewing testified that he and Ms. Ewing improved the property
during their occupancy. The trial record contains no evidence regarding the extent
of the repairs or their value, however. The Ewings also filed no counterclaim against
Shallcross, and have made no third-party claim against Turnkey.

8
Humes, et al. v. Charles H. West Farms, Inc. et al., 950 A.2d 661, 665 (Del. Super. Sept. 28,
2007),
3
The Parties’ Contentions
Shallcross contends that it has the right to an order of ejectment regarding the
subject matter property. It asserts that (1) it is the record title holder pursuant to a
presumptively valid deed recorded on October 25, 2023, and (2) it is an owner out
of possession because the Ewings occupy the property.
The Ewings, for their part, contend that the Court should not eject them
because Turnkey defrauded them, which, in turn, entitles them to purchase the
property from Shallcross. To that end, the Ewings contend that both they and
Shallcross were the victims of Turnkey’s allegedly unscrupulous and criminal
actions. That, the Ewings assert, should provide them the time necessary to obtain
financing to purchase the property from Shallcross. Finally, the Ewings contend
that the improvements they made to the property have increased its value. That,
they believe, gives them a further right to possess the property until they obtain the
financing necessary to purchase it from Shallcross.
Analysis
The evidence presented at trial includes a recorded deed, seventy-two
photographs of the property and text messages between the Ewings and a Shallcross
representative, and the testimony of Glenn Walters and Matthew Ewing. As the
Court explained to the parties at the start of trial, it must render its decision based
only upon the evidence presented during the trial.
Here, Shallcross met its burden of proof by demonstrating that it, more likely
than not, owns the property. Namely, Shallcross submitted a recorded deed – the
only deed in evidence – that demonstrates Shallcross’ record title. In Delaware, a
recorded deed constitutes prima facie evidence of ownership upon recording.9 A
party who challenges the validity of a deed must provide evidence to demonstrate

9
25 Del. C. § 153.
4
its invalidity and carries the burden of proof on that point.10 At trial, Mr. Ewing
contended that Shallcross’s title may have a cloud. Apart from that allegation, the
Ewings presented no admissible evidence to call into question Shallcross’ evidence
of ownership. To the contrary, the unrebutted evidence at trial demonstrated
conclusively that Shallcross owns the property.
Furthermore, Mr. Ewing incorrectly contends that the Court should decline to
order ejectment because Turnkey breached the contract to sell the property to he and
his wife, and Turnkey defrauded them when doing so. The Court sympathizes
greatly with the Ewings if that was the case. Any dispute between the Ewings and
Turnkey, however, does not provide a basis to preclude Shallcross from recovering
possession of its property.
Finally, the Court finds credible Mr. Ewing’s testimony that he and his wife
improved the property during their occupancy. There is no counterclaim before the
Court seeking damages for unjust enrichment, however. Furthermore, the Ewings
presented no evidence regarding the nature of the improvements or the value of such
improvements. Moreover, there was no evidence submitted to support a damages
award in their favor to a reasonable degree of certainty. While the Ewings may
have independent claims against Shallcross and Turnkey based upon one or more of
their contentions, the Court cannot (1) include an award in their favor in its order, or
(2) provide relief from ejectment, based upon unpled claims that were not supported
by trial evidence.
Conclusion
For the aforementioned reasons, Shallcross met its burden at trial. Judgment
is entered in favor of Plaintiff Shallcross Mortgage Company against Defendants
Matthew and Patricia Ewing, together with costs of the action. As a result, a writ

10
Edwards v. Estate of Muller, 1993 WL 489381, at *11 (Del. Ch. Oct. 18, 1993).
5
of ejectment is made absolute through this Order. In the interest of justice, however,
execution on the writ ejectment is stayed for thirty days, until September 8, 2024.
Execution may proceed immediately thereafter.
IT IS SO ORDERED.

Very truly yours,

/s/ Jeffrey J Clark
Resident Judge

Via File & ServeXpress
U.S. Mail and email to Defendants Matthew Ewing and Patricia Ewing

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