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Commonwealth Land Title Insurance Co. v. Funk

Superior Court of Delaware, New Castle

April 22, 2015

COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Florida Corporation, Plaintiff,
v.
VANCE A. FUNK, IV and THE LAW OFFICES OF VANCE A. FUNK, a Delaware Professional Association, Defendants/Third Party Plaintiffs,
v.
ANGELO GALANTINO & MARY GALANTINO, Third Party Defendants.

Submitted: April 16, 2015

Upon third party defendants' motion to dismiss and request for sanctions, GRANTED, in PART.

Bradley P. Lehman, Esquire, Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C., Wilmington, Delaware, Phillip A. Magen, Esquire, (pro hac vice), Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C., Philadelphia, Pennsylvania Attorneys for Plaintiff.

Jeffrey M. Weiner, Esquire, Wilmington, Delaware, Attorney for Defendants/Third Party Plaintiffs.

David Matlusky, Esquire, The Matlusky Firm, LLC, Wilmington, Delaware, Attorney for Third Party Defendants.

MEMORANDUM OPINION

PAUL R. WALLACE, JUDGE.

I. INTRODUCTION

Defendants/Third Party Plaintiffs, Vance A. Funk, IV, and the Law Offices of Vance A. Funk (collectively, "Funk") brought a third party complaint against Third Party Defendants, Angelo and Mary Galantino (collectively, the "Galantinos") for indemnification and contribution. The Galantinos have moved to dismiss the complaint on various grounds. Based on the pleadings and the record of the hearing of this motion, the Motion to Dismiss is GRANTED for the reasons set forth more fully below.

II. FACTS AND PROCEDURAL BACKGROUND[1]

The events underlying this action began with a 2007 property sale. The Galantinos sold property in 2007 to Donna and Warren Brady (collectively, the "Buyers"). The Buyers were to acquire the property subject to two mortgages: a purchase money mortgage held by the Galantinos and another mortgage held by a third party lender. Initially, the Galantinos agreed to subordinate their purchase money mortgage, which otherwise would have statutory priority, to the other lender's mortgage. A draft sale agreement was prepared. But that original deal fell through.

Alessio and Nancy Baffone (collectively, the "Baffones") then agreed to lend money to the Buyers in exchange for a mortgage with first priority and certain other conditions. The Baffones purchased title insurance from the Plaintiff, Commonwealth Title Land Insurance Company ("Commonwealth") for the transaction. Funk served as the closing agent for the sale pursuant to an Agency Agreement with Commonwealth. Funk modified the draft sale agreement by hand, reflecting the changed conditions. And, according to Funk, the Galantinos initialed the new sale agreement.

Funk conducted the closing in two sessions: the first with the Buyers and the second with the Galantinos. Funk recorded the Baffones' mortgage on July 5, 2007. He recorded the Galantinos' mortgage the next day, on July 6, 2007.

The Buyers eventually defaulted on their mortgage payments, and the Baffones filed a foreclosure action against them. The Galantinos intervened in that foreclosure action, alleging that their purchase money mortgage had priority over the Baffones'.

In August, 2010, a judge of this Court held an evidentiary hearing to determine the priority of the two competing mortgages. At that hearing, the Galantinos claimed they had informed their agent that they would not agree to subordinate their mortgage to the new lenders (the Baffones) under the new conditions. Nothing in the new sale agreement expressly reflected that, however. The Galantinos also denied that they had initialed the handwritten changes to the original sale agreement. Funk alleges this ...


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