ORDER GRANTING DEFENDANT'S CROSS-MOTION TO
M. DAVIS, JUDGE
consideration of Plaintiff s Motion to Enforce Settlement
(the "Motion") filed by Plaintiff Capital One, N.A.
("Capital One"); Defendant's Response to
Plaintiffs Motion to Enforce Settlement and Defendant's
Cross-Motion to Enforce Settlement (the
"Cross-Motion") filed by Defendant Suzanne M.
Bachovin; Plaintiffs Opposition to Defendant's
Cross-Motion to Enforce Settlement ("Opposition")
filed by Capital One; the arguments made in support of the
Motion, the Cross-Motion and the Opposition at the hearing
(the "Hearing") held on December 11, 2017; the
entire record of this civil proceeding; and for the reasons
set forth on the record at the Hearing:
party seeking to enforce a settlement agreement bears the
burden of proving the agreement's existence by a
preponderance of the evidence. Such settlements may be enforced
even in the absence of a signed writing:
"Delaware law favors the voluntary settlement of
contested suits, " and such arrangements will bind the
parties where they agree to all material terms and intend to
be bound by that contract, "whether or not [the contract
is] made in the presence of the court, and even in the
absence of a writing."
party seeking enforcement must prove: "(1) the intent of
the parties to be bound by it; (2) sufficiently definite
terms; and (3) consideration." Intent to be bound is based
on the "objective manifestations of assent and the
surrounding circumstances, " not "subjective
intent." "A settlement agreement may leave
matters to future negotiation if those matters are not
essential terms." Evidence of settlement negotiations is
admissible in an action to enforce settlement
Court finds that the Capital One and Ms. Bachovin entered
into a binding settlement agreement on September 1, 2017. The
email sent on August 30, 2017 ("August 30 Email")
set forth the material terms of settlement. As such, the
parties reached a settlement on September 1, 2017 based on
the terms in the August 30 Email. The August 30 Email did not
state whether Ms. Bachovin's payments (the
"Payment" or "Payments") to Capital One
would be mortgage payments or settlement payments. The
parties exchanged several draft settlement agreements for
nearly two months.
Where there is no express term in an agreement, the Court
will supply an "appropriate term." In this case, the
parties dispute whether the Payments are settlement or
mortgage payments. Capital One based the Payments on Ms.
Bachovin's current "mortgage payment." The
Payments consisted of: principle, interest, and county tax.
The Payments also excluded hazard insurance. Capital One
required Ms. Bachovin to maintain hazard insurance under the
settlement agreement. Under the circumstances, Ms. Bachovin
necessarily would have expected that she would get the
benefit (tax and otherwise) of having the payments considered
as mortgage payments. Capital One's concerns, as
expressed at the Hearing, are more ministerial as opposed to
substantive. Therefore, the Court finds that the Payments are
next issue relates to the effective date of the settlement
agreement. The August 30 Email set forth the material terms
of the settlement. The August 30 email stated that "Ms.
Bachovin has 180 days to vacate the property. The 180 days
does not begin to run until after the settlement documents
are executed." The parties have not executed a formal
settlement agreement. The parties began negotiations in early
Bachovin continues to reside on the Property. The record does
not reflect that Ms. Bachovin made any Payments during
September, October, November, or December of 2017. The
parties agreed to the material terms of settlement on
September 1, 2017. The Parties reasonably believed they would
have had an executed settlement agreement by October 1, 2017
as referenced in the draft settlement
agreements. The draft settlement agreements had the
first payment due on November 1, 2017.
negotiations continued into October, the parties removed the
effective date of October 1, 2017 and added "Due
Date." On October 30, 2017, Capital One sought
to reduce the 180-day delay to a 150-day delay because Ms.
Bachovin remained on the Property during October for
free. Based on the parties' intentions at
the outset of negotiations, the Court finds that the parties,
absent minor disputes, intended the settlement agreement to
become effective on October 1, 2017.
IS HEREBY ORDERED that the Cross-Motion is
GRANTED as to the issue of whether the
payment constitutes a mortgage payment or settlement payment;
IS HEREBY FURTHER ORDERED that Payment will relate
back to November 1, 2017.