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Bank of Delmarva v. South Shore Ventures, LLC

Superior Court of Delaware, Sussex

January 15, 2014

The Bank of Delmarva
v.
South Shore Ventures, LLC, John E. O'Brien, and Clayton Evans

Submitted: January 2, 2014

Upon Plaintiff's Motion for Summary Judgment. GRANTED.

Stephen W. Spence, Esquire Phillips, Goldman, & Spence, P.A.

Peter K. Schaeffer, Jr., Esquire Avenue Law.

Dear Counsel:

This claim involves yet another development project that failed as a result of the economic downturn and bursting of the real estate bubble.

The Bank of Delmarva ("Plaintiff") has sued South Shore Ventures, LLC, ("South Shore"), John E. O'Brien ("O'Brien") and Clayton Evans ("Evans") for breach of a promissory note. As a result, default judgment has been taken against Evans. Plaintiff now seeks summary judgment on its claims against South Shore and O'Brien (together, "Defendants"). For the reasons set forth herein, Plaintiff's Motion for Summary Judgment is GRANTED.

FACTS [1]

In early 2005, the Defendants sought financing from the Plaintiff for a real estate development project in Greenwood, Delaware known as "The Cove." Subsequently, on June 1, 2005, the Defendants executed a bond in favor of the Plaintiff in the amount of $500, 000.00. The bonds' maturity date was initially set for June 1, 2008, in which all principal and unpaid accrued interest were to be paid. The parties later executed three loan extension agreements extending that maturity date. Ultimately, the third extension set a maturity date of March 1, 2010.

Subsequently, in January 2010, the Defendants requested a loan modification. The modification would alter the loan terms and convert the obligation from a fixed maturity date to an obligation due on demand. The Plaintiff was receptive to the modification. Therefore, the Plaintiff's then outside counsel began to work on the loan modification documents. It was at this time that outside counsel discovered discrepancies in regard to the land title and the 2005 mortgage granted by the Defendants to the Plaintiff. As a result of such issues, the loan modification was abandoned and a written modification agreement never was executed by the parties.

The Defendants continued to make their payments on the loan obligation; however, the last payment was made in November 2011. Consequently, the Plaintiff filed suit alleging the loan was not paid on its maturity date of March 1, 2010. Subsequently, the Plaintiff amended its Complaint to allege also that if the January 2010 loan modification negotiations were found to have created a loan modification, then the new obligation was due on demand and the Plaintiff demanded payment in full.

The Defendants have not paid and now the Plaintiff requests the Court enter a judgment on the loan obligation in the amount of $494, 252.43 in principal; $81, 261.31 in unpaid accrued interest; $6, 056.31 in late fees; past-judgment interest; and costs and attorneys' fees per calculations as of October 14, 2013.

The Defendants oppose the entry of summary judgment for the reasons discussed below. The Court finds their arguments are without merit as ...


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