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Pencader Realty LLC v. Sri Ganesh Sai LLC

Court of Common Pleas of Delaware

October 15, 2019


          Reserved: September 9, 2019

          Adam F. Wasserman, Esquire Ciconte Scerba LLC Attorney for Plaintiff

          Charles S. Knothe, Esquire Attorney for Peter Meyer


          JOHN K. WELCH JUDGE.

         On August 9, 2019, this Court held a hearing on Peter Meyer's Motion to Vacate and Pencader Realty LLC's response thereto. This Court Denied Peter Meyers Motion to Vacate on the record and filed an Order denying the motion on August 19, 2019. On August 14, 2019, Peter Meyer timely noticed the present Motion for Reargument (the "Motion") pursuant to Court of Common Pleas Rule 59(e). On August 28, 2019, Pencader Realty LLC filed a response in opposition to the Motion. On September 6, 2019, Peter Meyer filed his Reply. This is the Final Decision and Order on Peter Meyer's Motion for Reargument.


         On May 2, 2018, Pencader Realty LLC ("Plaintiff) filed this action against Sri Ganesh Sai LLC ("Defendant") for breach of contract arising from a real estate transaction. Plaintiff entered into an agreement to purchase property from Defendant located at 1 6th Street, New Castle, DE 19720 (the "Property"). Meyer & Meyer Realty ("M&M") was the real estate agent for both Plaintiff and Defendant. The agreement between the parties was contingent on Plaintiff successfully obtaining a mortgage to finance the purchase of the Property. In the interim, the Property was in need of a new roof. Plaintiff asserts M&M urged Plaintiff to repair the roof and the parties agreed that should the transaction fall through, Plaintiff would be reimbursed for the cost. On June 9, 2017 and June 16, 2017, Plaintiff wrote a check to M&M for the replacement of the roof in the amount of $5, 635.00 each for a total of 11, 270.00. Plaintiff claims its bank denied the requisite financing for the purchase of the Property and M&M instructed Plaintiff to withdraw from the purchase. Despite Plaintiffs withdrawal from the sale, Defendant has not returned the cost of repairing the roof to Plaintiff.

         On June 27, 2018, Plaintiff filed an affidavit for entry of default judgment for want of an answer by Defendant and this Court entered default judgment. On July 17, 2018, Charles S. Knothe, Esquire ("Knothe") entered his appearance on behalf of the Defendant.

         On July 17, 2018, Defendant filed a Motion to Vacate the default judgement and on July 24, 2018, Plaintiff responded in opposition to Defendant's Motion to Vacate. On July 31, 2018, this Court granted Defendant's Motion to Vacate and ordered Defendant to file an answer within fifteen (15) days. On August 13, 2018, Defendant filed an answer denying Plaintiffs substantive allegations and counterclaimed for attorney's fees in the event Defendant prevailed.

         On January 15, 2019, Defendant filed a Motion for Summary Judgement asserting a statute of frauds argument. On January 23, 2019, Plaintiff responded to Defendant's Motion for Summary Judgment arguing the statute of frauds partial performance exception. On January 25, 2019, this Court denied Defendant's motion.

         On January 28, 2019, Knothe filed a Motion to Withdraw as counsel for Defendant because Defendant failed to respond to counsel. On February 8, 2019, this Court granted Knothe's request and instructed Defendant to hire counsel within thirty (30) days or face default judgment.

         On March 11, 2019, Plaintiff filed a Motion for Default Judgment and on March 22, 2019, this court entered default judgement in favor of the Plaintiff against the Defendant.

         On June 26, 2019, Plaintiff filed a Motion for Attachment of Judgment Lien and Writ of Execution, requesting to attach judgment to a third party, Peter Meyer ("Meyer"). On October 19, 2018, while litigation was pending, Meyer purchased the Property in question from the Defendant. Plaintiff alleged Meyer purchased the Property despite knowing of the litigation. Plaintiff further argued the principal of the Defendant absconded following the sale of the Property. On July 26, 2019, this Court granted Plaintiffs motion in part, permitting Plaintiff to pursue its judgment by way of writ of execution upon the Property, notwithstanding the transfer of ownership of the Property.

         On July 26, 2019, Knothe, despite his failure to file an entry of appearance, filed a Motion to Vacate the default judgement as Meyer's counsel. Meyer asserted his counsel prepared a response to Plaintiffs motion to attach; however, due to a clerical error, the response to Plaintiffs motion was not docketed. Meyer requested the decision be vacated and he be permitted to file a response to Plaintiffs motion for attachment. On August 5, 2019, Plaintiff filed a response in opposition to Meyer's motion to vacate. Plaintiff argued Meyer's Motion to Vacate failed to demonstrate excusable neglect for failure to timely respond and attend the hearing on Plaintiffs motion. Plaintiff asserted Meyer could not avoid the rule of the Court by simply alleging clerical errors. Plaintiff contended that permitting counsel to avoid following procedural rules for a second time in the case would rendered ...

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