Duy Nghia Tran and Tien Thi Thuy Nguyen v. Tony T. Ha

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DUY NGHIA TRAN and TIEN THI )
THUY NGUYEN, )
)
Plaintiffs, )
) C.A. No. N25C-09-101 FWW
v. )
)
TONY T. HA, )
)
Defendant. )

Submitted: December 15, 2025
Decided: March 23, 2026

Upon Defendant Tony T. Ha’s Motion to Dismiss
GRANTED.

ORDER

Bradley P. Lehman, Esquire, WHITEFORD TAYLOR & PRESTON, LLC,
600 North King Street, Suite 300, Wilmington, DE 19801, attorney for
Plaintiffs Duy Nghia Tran and Tien Thi Thuy Nguyen.

Steven D. Rosen, Esquire THE ROSEN LAW FIRM, LLC, 232 Philadelphia
Pike, Suite 2, Wilmington, DE 19809, attorney for Defendant Tony T. Ha.

WHARTON, J.
This 23rd day of March 2026 upon consideration of Defendant Tony T.

Ha’s (“Ha”) Motion to Dismiss the Complaint (“Motion”), 1 Plaintiffs Duy 0F

Nghia Tran and Tien Thi Thuy Nguyen’s (“Plaintiffs”) Response in

Opposition, 2 Ha’s Reply Memorandum in Support of his Motion, 3 and the
1F 2F

record in this case, it appears to the Court that:

1. Plaintiffs filed a Complaint on September 11, 2025, seeking

declaratory relief regarding their rights and obligations to the property located

at 6507 Limestone Road, Hockessin, Delaware 19708 (the “Property”). 4 This 3F

declaratory judgment action challenges the validity and enforceability of an

asserted $690,000 second mortgage relating to Plaintiffs’ purchase of the

property. 5 Plaintiffs seek a declaration that the alleged second mortgage is
4F

invalid and that they owe only on a separate first mortgage. 6 5F

2. The parties closed on the property on March 18, 2022 at the

office of Brian Funk, Esquire. 7 Plaintiffs contend that there was an agreement
6F

between Ha and themselves for a sale price of $500,000. 8 Ha offered and
7F

1
Def.’s Mot. To Dismiss, D.I. 6. (“MTD”)
2
Pls.’ Resp. to MTD., D.I. 8.
3
Def.’s Reply to MTD, D.I. 9.
4
See generally Compl. D.I. 1.
5
Id. ¶ 1.
6
Id. ¶ 7.
7
Id. ¶ 10.
8
Id.
2
provided private seller financing in the amount of $290,000 and received

prepayment for the remaining amount of $210,000. 9 In connection with the
8F

purchase, a Purchase Money Mortgage and Promissory Note were prepared

by Brian Funk, Esq. and secured the debt of $290,000. 10 The Promissory Note
9F

for the first mortgage reflects Plaintiffs’ promise to pay Ha a principal sum of

$290,000 over a 10-year period at an interest rate of 5.00%. 11 A monthly 1 F

payment of $3,082 was required beginning May 1, 2022. 12 11F

3. Plaintiffs allege that unbeknownst to Mr. Funk, Ha

misappropriated his form of mortgage and then created a fraudulent second

mortgage to secure a debt of $690,000. 13 This second mortgage was never
12F

recorded, and a promissory note was not executed in connection with it. 14 In 13F

their complaint, Plaintiffs seek a declaration from this court that the second

mortgage is invalid and unenforceable and that they only owe Ha the

remaining principal balance under the first mortgage. 15 14F

9
Id.
10
Id. ¶¶ 12-13
11
Id. ¶ 14
12
Id., Ex. C.
13
Id. ¶ 15.
14
Id. ¶ 16.
15
Id. ¶ 24.
3
4. Ha moves to dismiss under Superior Court Civil Rules 12(b)(1)

and 12(b)(6), asserting that the dispute is not ripe, it lacks subject matter

jurisdiction, and fails to state a claim. 16 Ha’s principal argument is that the
1 F

case is not ripe because no foreclosure or default notice has issued and

Plaintiffs continue making payments on the mortgage. 17 Ha further represents
16F

that Plaintiffs defaulted for twelve months on the $290,000 mortgage

beginning in June 2022, that certain funds were advanced and repaid in 2022

and 2023, and that Plaintiffs continue to make monthly payments on the

$290,000 mortgage. 18 Ha emphasizes that no 30-day default notice has been
17F

issued, and no foreclosure action has been filed. 19 He argues that since there
18F

is no enforcement action threatening the rights of the Plaintiffs there is no

justiciable controversy, and the case is not ripe. 20 19F

5. Ha also contends that this Court lacks subject matter jurisdiction

and should be dismissed under Rule 12(b)(1). 21 He views the Complaint’s
2 F

challenge to the second mortgage as implicating the equitable remedy of

contract reformation, a remedy outside of this Court’s subject matter

16
MTD at 1.
17
Id.
18
Id. at 3.
19
Id.
20
Id. at 5
21
Id. at 5-6.
4
jurisdiction. 22 Finally, Ha contends that the Complaint should be dismissed
21F

under Rule 12(b)(6) for failure to state a claim. He maintains that the

Complaint’s allegations are conclusory and it is insufficiently specific to merit

relief. 23
22F

6. Plaintiffs oppose dismissal, arguing that an actual controversy

exists because Ha asserts substantial sums are due under the disputed

$690,000 instrument, has threatened foreclosure, and Plaintiffs deny any such

obligation. 24 They argue that the threatened foreclosure action and dispute as
23F

to money owed creates an actual controversy that can be resolved by this

Court. 25 Plaintiffs maintain that a declaratory ruling is appropriate now and
24F

need not await a foreclosure filing or default notice. 26 25F

7. A party may move to dismiss under Rule 12(b)(1) for lack of

subject matter jurisdiction. 27 “‘Whenever it appears by suggestion of the
6F

parties or otherwise’ that the Court lacks subject matter jurisdiction, the Court

must dismiss the claim.” 28 In considering a Rule 12(b)(1) motion, the Court
27F

22
Id.
23
Id. at 6.
24
Pl.’s. Resp. to MTD at 3-4.
25
Id.
26
Id. at 4.
27
Super. Ct. Civ. R. 12(b)(1).
28
KT4 Partners LLC v. Palantir Techs, Inc. 2021 WL 2823567, at *24 (Del.
Super. Ct. June 24, 2021).
5
“need not accept [the plaintiff's] factual allegations as true and is free to

consider facts not alleged in the complaint.” 29 Accordingly, whereas the
28F

movant “need only show that the Court lacks jurisdiction,” 30 the non-movant
29F

bears the “far more demanding” burden “to prove jurisdiction exists.” 31 30F

8. A motion to dismiss for failure to state a claim pursuant to

Superior Court Rule 12(b)(6) will not be granted if the “plaintiff may recover

under any reasonably conceivable set of circumstances susceptible of proof

under the complaint.” 32 The Court's review is limited to the well-pled
1F

allegations in the complaint. 33 32F In ruling on a 12(b)(6) motion, the Court

“must draw all reasonable factual inferences in favor of the party opposing

the motion.” 34 Dismissal is warranted “only if it appears with reasonable
33F

29
Appriva S’holder Litig. Co. v. EV3, Inc. 937 A.2d 1275, 1284 n.14 (Del.
2007) (internal quotation marks omitted); see Nelson v. Russo, 844 A.2d 301,
302 (Del. 2004) (“In deciding whether the Superior Court has subject matter
jurisdiction, we must look beyond the language in the complaint....”); see also
Texcel v. Com. Fiberglass, 1987 WL 19717, at *2 (Del. Super. Ct. Nov. 3,
1987) (“The gravamen of subject matter jurisdiction ... lies not in the pleading
but in the existence of facts necessary for the court to exercise its
jurisdiction.”).
30
Airbase Carpet Mart, Inc. AYA Assoc., Inc., 2015 WL 9302894, at *2
(Del. Super. Cy. Dec. 15, 2015), aff’d, 2016 WL 4938890 (Del. Sept. 16,
2016).
31
Appriva, 937 A.2d 1284 n.14.
32
Browne v. Robb, 583 A.2d 949, 950 (Del. 1990).
33
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
34
Id.
6
certainty that the plaintiff could not prove any set of facts that would entitle

him to relief.” 35
34F

9. The Court need only address Ha’s ripeness argument. This

Court has the discretion to issue a declaratory judgment provided the case

involves an “actual controversy.” 36 Four elements need to be satisfied in
35F

order to determine if an actual controversy is present:

(1) It must be a controversy involving the rights or other legal
relations of the party seeking declaratory relief; (2) it must be
a controversy in which the claim of right or other legal interest
is asserted against one who has an interest in contesting the
claim; (3) the controversy must be between parties whose
interests are real and adverse; and (4) the issue involved in the
controversy must be ripe for judicial determination. 37
36F

The fourth element requires that a plaintiff present an actual controversy that

is ripe for judicial determination. 38 A dispute is not ripe if based on uncertain
37F

and contingent events that may never occur, or where future events may

obviate the need for judicial action. 39 This Court has dismissed declaratory
38F

35
Id.
36
XL Specialty Ins. Co. v. WMI Liquidating Trust, 93 A.3d 1208, 1216 (Del.
2014).
37
In re COVID-Related Restrictions on Religious Servs., 326 A.3d 626, 642-
43 (Del. 2024) (quoting Rollins Int'l v. Int'l Hydronics Corp., 303 A.2d 660,
662-63 (Del. 1973)).
38
Id.
39
Schick Inc. v. Amalgamated Clothing & Textile Workers Union, 533 A.2d
1235, 1239 (Del. Ch. 1987).; XL Specialty Ins. Co., 93 A.3d at 1217.
7
actions challenging mortgage enforceability where no foreclosure is pending,

finding such disputes not yet in a sufficiently concrete and final form for

adjudication. 40
39F

10. Plaintiffs seek a present declaration that the $690,000 mortgage

is invalid, but the record reflects three central facts: no foreclosure action has

been filed, no default notice has issued, and Plaintiffs continue to make

monthly payments on the $290,000 mortgage; these conditions indicate that

Plaintiffs have not sustained an injury in fact. The dispute has not crystallized

into an actual controversy, and a declaratory judgment will risk becoming

advisory if no enforcement materializes or if the parties otherwise resolve

their differences.

11. Plaintiffs’ reliance on alleged foreclosure threats does not

warrant the Court’s intervention because the relevant question is whether the

dispute has matured into a concrete and immediate controversy. In the present

circumstances, with no notice of default, no foreclosure proceedings, and

ongoing payments, the matter has not ripened into a dispute appropriate for

declaratory judgment.

40
Toelle v. Greenpoint Mortg. Funding, Inc., 2015 WL 5158276, at *6 (Del.
Super. Apr. 20, 2015).
8
THEREFORE, Defendant Tony T. Ha’s Motion to Dismiss is

GRANTED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, J.

9