Angelo v. NVR Inc. et al

Filing 60

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 2/23/2021. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RONALD ANGELO, SR.,
Plaintiff,
v.
NVR, INC. et al.,
Defendants.

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: Civil Action No. 18-523-RGA
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Ronald Angelo, Sr., Townsend, Delaware. Pro Se Plaintiff.
Scott G. Wilcox, Esquire, Moor & Rutt, PA, Wilmington, Delaware. Counsel for
Defendant.

MEMORANDUM OPINION

February 23, 2021
Wilmington, Delaware

/s/ Richard G. Andrews
ANDREWS, U.S. District Judge:
Plaintiff Ronald Angelo, Sr. filed this action on April 6, 2018. (D.I. 1). He
appears pro se and has paid the filing fee. Both the original complaint and amended
complaint were dismissed; Plaintiff was given leave to file a second amended complaint.
(D.I. 34, 35, 52, 53). Plaintiff filed a Second Amended Complaint on April 15, 2020.
(D.I. 54). He invokes jurisdiction by reason of diversity of the parties. (Id. at 2). Before
the Court is Defendant NVR’s motion to dismiss the Second Amended Complaint. (D.I.
55). Briefing is complete. (D.I. 56, 57, 58, 59).
BACKGROUND
The facts and allegations of the original complaint are fully set forth in the Court’s
March 12, 2012 Memorandum Opinion. (See D.I. 34 at 2-4) In the Second Amended
Complaint Plaintiff alleges:
The chain of events and violations place the violation of transfer of the lot
with 2005 Declaration filed in perpetuity. The lot, which was purchased by
the builder from the developer with the 2005 Declaration recorded against
the lot. The builder then constructed the home and transferred the lot and
completed home to the buyer with the violations attached.
The 2005 Declaration was attached to the lot in perpetuity before the lot
was transferred to the Defendant. It was filed with violations of county and
state laws.
In the 2005 Declaration, a fee payable by the builder to the golf course
was taken at settlement from the buyer. It states in the 2005 Declaration
that the buyers were not [liable] for this $5,000 fee.
I attempted to refinance my mortgage with Mortgage Lenders. In the
application, I supplied the letters from New Castle County for funding as a
requirement for full disclosure. The lenders responded with a refusal
stating in various forms; the Property has no collateral value as long as
the 2005 Declaration is attached to the property. [Due] to COVID-19, I am
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still waiting for responses from Mortgage Lenders regarding my
applications.
At this point, I cannot refinance or sell the property with full disclosure,
with the 2005 Declaration recorded against the property. The violation is
ongoing until the 2005 Declaration is declared Void Ab Initio by this Court,
the property has no collateral value.
(D.I. 54 at 3-4).
Plaintiff seeks either a declaratory judgment and $5,000; Defendant purchases
the property for approximately $400,000; or required non-binding negotiations. (Id. at 34).
The memorandum in support of the Second Amended Complaint (D.I. 54 at 6-15
of 106) refers to the New Castle County Code of Ordinances, 40.30.510(b), the New
Castle County Unified Development Code, UDC 40.31.130, and Delaware State Law, 9
Del. C. § 9605. (Id. at 6-8, 11-13). The memorandum contends that the 2005 Master
Declaration is an illegally recorded instrument under the UDC 40.30.130 and does not
meet the requirements of 9 Del. C. § 9605. (Id. at 8, 13). It also appears to contend
that the Master Declaration is invalid under 40.30.510(b), because an alleged fraud was
perpetrated by the builder when the fee was paid by the buyer, the fee on the settlement
paper stated it was a golf course fee, and the $5,000 fee was collected at settlement
before any questions of the validity of the 2005 Declaration were discovered. (Id. at 14).
My reading of the Second Amended Complaint, informed in part by what Plaintiff
has stated in his earlier complaints in this case, is that at settlement in 2007 (see D.I. 11 at 2 of 54), his wife purchased the property in which he currently lives. At settlement,
$5,000 was taken out as a maintenance fee as provided for by the 2005 Master
Declaration, which is a lien on the property. But the 2005 Master Declaration is faulty
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and should not be a lien on the property. 1 The faulty lien on the property reduces the
value of the property from about $400,000 to zero.
Defendant moves to dismiss the Second Amended Complaint on the grounds
that: (1) the Court lacks jurisdiction; (2) Plaintiff waived his challenge to the 2005
Declaration and the claims are time-barred; 2 (3) the Second Amended Complaint is not
ripe; and (4) the Second Amended Complaint fails to state claims upon which relief can
be granted. (D.I. 56, 58).
DISCUSSION
Despite his repeated attempts, Plaintiff failed to cure his pleading defects. The
Court addresses only ripeness as it is case dispositive.
This is what I wrote earlier in dismissing the original complaint.
It does not appear that Plaintiff’s claims are ripe. There are no facts
alleged that there was an attempt to sell the property and that problems arose
due to the DOC and Maintenance Declaration. Nor are there allegations Plaintiff
suffered a loss that triggered CLT's duty to defend under the title insurance
policy. It is pure conjecture that "the home cannot be sold and no loans can be
made with the property as collateral." (D.1 at 5).
"The existence of a case and controversy is a prerequisite to all federal
actions, including those for declaratory or injunctive relief." Peachlum v. City of
York, 333 F.3d 429, 433 (3d Cir. 2003) (quoting Presbytery of N.J. of Orthodox
Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)). Ripeness is a
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Plaintiff previously contested the property tax assessment relating to the property. He
raised many bases for his claim in that case, including “Invalid deed, illegal declaration
filed (2005 master declaration).” Angelo v. New Castle County Bd. of Assessment
Review, No. N17A-06-008 VLM (Del. Super. Dec. 11, 2017). There has been
subsequent litigation in which the allegations were that the Angelos did not pay
assessments to the maintenance corporation. See Angelo v. Southerness Maintenance
Corp., No. CPU4-19-004547 (Del. Ct. Com. Pl.).

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Defendant raised lack of standing as one ground for dismissal in its supporting
memorandum. (D.I. 56). In its reply to Plaintiff’s response, Defendant states that
Plaintiff potentially corrected the lack of standing issue, has waived his challenge to the
2005 Declaration, and now contends that the claims are time-barred.
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component of the case or controversy requirement, and determines "whether a
party has brought an action prematurely, and counsels abstention until such time
as a dispute is sufficiently concrete to satisfy the constitutional and prudential
requirements of the doctrine." Pittsburgh Mack Sales & Serv., Inc. v. International
Union of Operating Eng'rs, Local Union No. 66, 580 F.3d 185, 190 (3d Cir. 2009)
(citing Peachlum, 333 F.3d at 433).
As pled, the disputes are not sufficiently concrete to satisfy the
requirements of ripeness.
(D.I. 34 at 12).
Defendant argues that the Second Amended Complaint is not sufficiently
concrete to satisfy the requirements of ripeness. Plaintiff argues that he has tried to
refinance, the mortgage companies all refuse to lend funds, and no buyer will purchase
a home with the illegal 2005 Declaration recorded against the deed. (D.I. 57 at 8; D.I.
59 at 2).
The Second Amended Complaint alleges that Plaintiff attempted to refinance his
mortgage and the lenders responded with a refusal stating in various forms that “the
property has no collateral value as long as the 2005 Declaration is attached to the
property.” (D.I. 54 at 3) It states that Plaintiff is “still waiting for responses from
mortgage lenders regarding his applications. (Id. at 4). The Second Amended
Complaint goes on to allege that Plaintiff “cannot refinance or sell the property with full
disclosure with the 2005 Declaration recorded against the property.” (Id.).
Exhibits attached to the Second Amended Complaint include: (1) an April 19,
2019 letter from Quicken Loans dated April 19, 2019, stating that it is unable to offer
financing due to “collateral” “unacceptable property type”; (2) an April 16, 2019 email
from LoanDepot stating that “any lien/action will be required to be removed prior to
refinancing”; and an April 10, 2019 email from Wyndham Capital Mortgage stating that,
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“you want to grill your title company (closing attorney’s office) and make sure they clear
this as it can affect your value and ability to sell in the future”. (Id. at 77-79).
As I said before, “The existence of a case and controversy is a prerequisite to all
federal actions, including those for declaratory or injunctive relief.” Peachlum v. City of
York, 333 F.3d 429, 433 (3d Cir. 2003) (quoting Presbytery of N.J. of Orthodox
Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)). Ripeness is a
component of the case or controversy requirement, and determines “whether a party
has brought an action prematurely, and counsels abstention until such time as a dispute
is sufficiently concrete to satisfy the constitutional and prudential requirements of the
doctrine.” Pittsburgh Mack Sales & Serv., Inc. v. International Union of Operating
Eng’rs, Local Union No. 66, 580 F.3d 185, 190 (3d Cir. 2009) (citing Peachlum, 333
F.3d at 433).
Plaintiff’s claims were not ripe when he filed this lawsuit. There are no facts the
allege there was an attempt to sell the property and that problems arose due to the
2005 Declaration. Nor do the exhibits from potential mortgage lenders attached to the
Second Amended Complaint make any reference to the 2005 Declaration. Notably,
those exhibits are emails and letters dated April 2019, one full year after Plaintiff
commenced this action on April 6, 2018, making it clear the issues were not ripe when
Plaintiff commenced this action. In addition, similar to the allegations in the original
complaint, the Second Amended Complaint contains pure conjecture that Plaintiff
“cannot refinance or sell the property with full disclosure with the 2005 Declaration
recorded against the property.” (Id. at 3).

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As pled, Plaintiff’s claims are not sufficiently concrete to satisfy the requirements
of ripeness. Accordingly, the motion to dismiss will be granted on this ground. Since I
am dismissing for lack of jurisdiction, I do not address Defendant’s motion to dismiss for
failure to state a claim. 3
The Court has given Plaintiff several opportunities to correct his pleading
deficiencies, to no avail. See Foman v. Davis, 371 U.S. 178, 182 (1962) (The court may
curtail or deny a request for leave to amend where there is “repeated failure to cure
deficiencies by amendments previously allowed” and there would be “futility of
amendment.”). Allowing further amendments would be futile.
IV.

CONCLUSION
For the above reasons, the Court will grant Defendant’s motion to dismiss the

Second Amended Complaint.
An appropriate order will be entered.

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The issues raised by the motion to dismiss for failure to state a claim are mostly issues
that I addressed in my earlier opinions in this case.
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