S. Ct. Civ. No. 2014-0043

The Superior Court did not err in granting summary judgment for the lender in an action for debt and foreclosure on a mortgage. To survive a summary judgment motion, the non-moving party may not rest upon mere allegations and must present actual evidence showing a genuine issue for trial, which must amount to more than a scintilla of proof. In this case the lender met its evidentiary burden on its cause of action for debt and foreclosure and the borrower presented no evidence that a genuine issue of material fact exists as to her counterclaims. Analyzing the Superior Court's grant of summary judgment in the context of the substantive law governing the cause of action, after the lender established that there is no genuine issue of material fact regarding its action for debt and foreclosure, the burden shifted to the borrower to identify specific areas in the record setting forth affirmative evidence that there is a genuine issue of material fact from which a jury may reasonably return a verdict in her favor. Here the borrower acknowledged two of the three requirements necessary for the lender to prevail on its foreclosure action, but denied that she was in default on her mortgage and note. However, in her opposition the borrower neither provided specific evidence to confirm that there is an issue of material fact regarding the amount of the lender's damages, nor did she submit any affidavits, answers to interrogatories, or sworn documentation that refutes the affidavit provided by the lender. The exhibits submitted by the borrower did not establish any genuine dispute as to any material fact. She failed to produce any documentation or evidence supporting the claim that she demanded an accounting of her loan balance, and failed to provide evidence to contest the allegation that she was in default under the parties' modification agreement. Thus, the borrower failed to present anything more than allegations, unsupported by any actual evidence showing a genuine issue for trial. Since there is no genuine issue of material fact, the Superior Court's grant of summary judgment on the cause of action for debt and foreclosure is appropriate. The language of a release executed by the borrower is unambiguous and operates to relinquish all of her claims against the lender and it bars her counterclaims against the lender based on the note and mortgage. Other issues - not raised in the Superior Court - are waived on the appeal. Therefore the Superior Court's June 16, 2014 Order granting summary judgment in favor of the lender is affirmed.