IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LAKEVIEW LOAN SERVICING, )
LLC, )
)
Plaintiff, )
)
v. ) C.A. No. N25L-09-015 CLS
)
ELIZABETH AMBER FREDERICK, )
CARL FREDERICK, and )
RADICATUS IN VERITAS FAMILY )
TRUST, )
)
Defendants. )
Date Submitted: July 15, 2026
Date Decided: August 10, 2026
Upon Pro se Defendant Carl Frederick’s Motion to Dismiss, DENIED.
Upon Pro se Defendant Elizabeth Amber Frederick’s Motion to Dismiss, DENIED.
ORDER
Having considered Pro se Defendant Carl Frederick’s Motion to Dismiss,1 Pro
se Defendant Amber Frederick’s Motion to Dismiss,2 and Plaintiff’s Responses in
Opposition,3 it appears to the Court that:
1
Pro se Def. Carl Frederick’s Mot. to Dismiss, D.I. 30 (“Mr. Frederick’s Mot. to Dismiss”). 2
Pro se Def. Elizabeth Amber Frederick’s Mot. to Dismiss, D.I. 32 (“Ms. Frederick’s Mot. to Dismiss”).
3
Pl.’s Resp. to Mr. Frederick’s Mot. to Dismiss, D.I. 36; Pl.’s Resp. to Ms. Frederick’s Mot. to Dismiss, D.I. 37.
1. On September 14, 2020, Elizabeth Amber Frederick and Carl Frederick
(collectively, “Defendants”) executed a mortgage (the “Mortgage”) in favor of
Mortgage Electronic Registration Systems, Inc., as nominee for Pike Creek
Mortgage Services, Inc., for property located on Barnacle Court in Middletown,
Delaware.4 The Mortgage was assigned to Lakeview Loan Servicing, LLC
(“Plaintiff”).5
2. Defendants failed to pay the Mortgage’s monthly payments, and Plaintiff filed
this scire facias sur mortgage action on September 5, 2025.6
3. On April 28, 2026, Plaintiff filed a Motion to Amend the Complaint to add a
trust entity as a party to the Complaint because Defendants transferred title of the
property to said trust.7 The Court granted Plaintiff’s Motion to Amend the
Complaint on May 26, 2026.8
4. Plaintiff filed the Amended Complaint on May 28, 2026, adding the Radicatus
in Veritas Family Trust (the “Trust”) as a party to the action.9
4
Amended Compl., D.I. 26, ¶ 6, Ex. E (“Amended Compl.”).
5
Id. ¶ 6, Ex. F.
6
Id. ¶ 7; see generally Compl., D.I. 1.
7
Pl.’s Mot. to Amend the Compl., D.I. 22, ¶ 3.
8
Order Granting Pl.’s Mot. to Amend the Compl., D.I. 25.
9
See generally Amended Compl. Defendants were made aware at the hearing on Plaintiff’s Motion to Amend the Complaint that the Trust, as an artificial entity, must be represented by an attorney under Delaware law. See Tigani on Behalf of Irrevocable Trust v. Director, 2020 WL 5237278, at *5 (Del. Super. Sept. 2, 2020) (concluding that a pro se litigant does not have standing to represent a trust, which constitutes an artificial entity). The Court notes that an Answer to the Amended Complaint has not been filed by an attorney on behalf of the Trust and Defendants lack standing to file an Answer on behalf of the Trust.
5. On June 15, 2026, Mr. Frederick filed a Motion to Dismiss the Amended
Complaint, arguing that Plaintiff lacks standing to sue him because he was never a
party to the mortgage instrument, and any instrument purporting to hold him out as
such is fraudulent and unenforceable. According to Mr. Frederick, “no debt
obligation exists against him[.]”10
6. Ms. Frederick also filed a Motion to Dismiss on June 15, 2026, contending
that Plaintiff: (1) lacks standing to sue because Plaintiff “has not produced the
original wet-ink promissory note . . . [or] a valid mortgage lien tied to that note[;]”
(2) fails to state a claim because the “mortgage contract was materially altered by
the inclusion of a non-borrower[;]” (3) made fraudulent misrepresentations at
closing; and (4) “failed to exhaust loss mitigation options as required by USDA HB1-35555, Ch. 18” before foreclosure.11
7. Plaintiff filed Responses in Opposition to both Defendants’ Motions to
Dismiss, proffering that any argument regarding its standing is meritless and that the
remainder of Defendants’ arguments are premature affirmative defenses that are not
well-suited for a motion to dismiss. The Court agrees with Plaintiff.
8. Upon a motion to dismiss under Superior Court Civil Rule 12(b)(6), the Court
(i) accepts all well-pled factual allegations as true, (ii) accepts even vague allegations
10
Mr. Frederick’s Mot. to Dismiss ¶ 1.
11
Ms. Frederick’s Mot. to Dismiss ¶¶ 1–4.
as well-pled if they give the opposing party notice of the claim, (iii) draws all
reasonable inferences in favor of the non-moving party, and (iv) only dismisses a
case where the plaintiff would not be entitled to recover under any reasonably
conceivable set of circumstances.12 The Court does not, however, accept
“conclusory allegations that lack specific supporting factual allegations.” 13 But “it
is appropriate . . . to give the pleader the benefit of all reasonable inferences that can
be drawn from the pleading.”14
9. Under 10 Del. C. § 5061, a mortgagee’s assignee may file a lawsuit in
Superior Court for any injury sustained due to default payment on a mortgage of real
estate.15 Here, Plaintiff alleges that Defendants signed the Mortgage, which was
later assigned to Plaintiff, and that Defendants have failed to make the payments
required. Therefore, Plaintiff has standing.
10. The defenses available in a scire facias sur mortgage foreclosure action are
limited and only those claims or counterclaims arising under the mortgage may be
raised.16 Delaware courts recognize the defenses of payment, satisfaction, or
12
ET Aggregator, LLC v. PFJE AssetCo Hldgs. LLC, 2023 WL 8535181, at *6 (Del. Super. Dec. 8, 2023).
13
Id. (quoting Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998)).
14
TrueBlue Inc. v. Leeds Equity Partners IV, LP, 2015 WL 5968726, at *2 (Del. Super. Sept. 25, 2015) (quotations omitted).
15
See also CitiMortgage, Inc. v. Bishop, 2013 WL 1143670, at *4 (Del. Super. Mar. 4, 2013) (citing 10 Del. C. § 5061(a); CitiMortgage, Inc. v. Trader, 2011 WL 3568180, at *1 (Del. Super. May 13, 2011)) (other citation omitted).
16
Id. at *5 (citing CitiMortgage, Inc. v. Kine, 2011 WL 6000755, at *2 (Del. Super. Nov. 1, 2011)). avoidance.17 A plea in avoidance must “relate to the mortgage sued upon, i.e., the
plea must relate to the validity or illegality of the mortgage documents.”18 These
include acts of God, assignment, conditional liability, duress, exception, forfeiture,
fraud, illegality, justification, non-performance of condition precedents, ratification,
unjust enrichment, and waiver.19 “Permissive counterclaims may not be asserted in
a scire facias sur mortgage action.”20
11. Defendants’ assertions of fraud and material alteration of the mortgage
instrument constitute affirmative defenses. Given that the Court is limited to the
four corners of the complaint on a Rule 12(b)(6) motion, affirmative defenses are
generally unsuited for the pleading stage “[u]nless it is clear from the face of the
complaint that an affirmative defense exists and that the plaintiff can prove no set of
facts to avoid it[.]”21 This burden is not met here as Plaintiff states a reasonably
conceivable claim in a scire facias sur mortgage action.
17
Wells Fargo Bank, N.A. v. Williford, 2011 WL 5822630, at *3 (Del. Super. Nov. 17, 2011) (internal citations omitted).
18
Bishop, 2013 WL 1143670, at *5 (quoting Williford, 2011 WL 5822630, at *3) (internal quotation marks omitted).
19
Id.
20
Williford, 2011 WL 5822630, at *3 (internal citations omitted).
21
Reid v. Spazio, 970 A.2d 176, 183–84 (Del. 2009) (internal citations omitted); see also US Dominion, Inc. v. Newsmax Media, Inc., 2022 WL 2208580, at *28 (Del. Super. June 16, 2022).
12. Finally, Ms. Frederick may not argue that Plaintiff violated any USDA
regulations because it is a permissive counterclaim that is not associated with the
mortgage transaction at issue.22
13. For the foregoing reasons, Mr. Frederick’s Motion to Dismiss and Ms.
Frederick’s Motion to Dismiss are DENIED.
IT IS SO ORDERED.
/s/ Calvin Scott
Judge Calvin L. Scott, Jr.
22
Williford, 2011 WL 5822630, at *3 n.47.