IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE TOWN OF CAMDEN, a
Municipal corporation of the
State of Delaware,

C.A. No. K18J-03097 NEP

Plaintiff, In and for Kent County

v.
JAMES EDWARD GOLDSMITH, II,

Defendant.

New Nee Nee Nee Ne ee” ee” ee” ee’ ee” ee ”

Submitted: September 25, 2019
Decided: November 20, 2019

ORDER

Upon Defendants’ Motion to Set Aside the Monition Sale
DENIED

On this the 20th day of November, 2019, having considered Defendant James
Goldsmith’s (hereinafter “Mr. Goldsmith”) Motion to Set Aside the Monition Sale
and the Town of Camden’s (hereinafter “the Town”) Response; the evidence,
testimony, and arguments of the parties presented at the hearing held on September
11, 2019; and the supplemental letters filed by the parties on September 25, 2019,
Defendant’s Motion is DENIED.

I. Factual Background

Mr. Goldsmith purchased his home at 404 Commons Lane in Camden, Dela-
ware (hereinafter “the Property”) in 1985. On October 16, 2018, the Sheriff of Kent
County (hereinafter “the Sheriff’) posted a Monition Notice declaring that Mr.
Goldsmith owed $2,383.07 in taxes to the Town and $150.00 in monition costs. On

December 27, 2018, the Sheriff posted notice that a monition sale of the property
would occur on January 29, 2019. Mr. Goldsmith did not contact the Town between
the time of receiving the Monition Notice and receiving notice of the sale.

On January 15, 2019, Mr. Goldsmith’s wife, Sherri Goldsmith (hereinafter
“Mrs. Goldsmith”)', spoke on the telephone with the Town’s attorney, William W.
Pepper, Sr., Esquire (hereinafter “Mr. Pepper”). Mr. Pepper informed Mrs.
Goldsmith of the amount that Mr. Goldsmith would have to pay the Town in order
to stop the monition sale. At no point did Mr. Pepper tell Mrs. Goldsmith that the
sale had been cancelled.”

On January 25, 2019, Mrs. Goldsmith proceeded to the Town office and
submitted a cashier’s check, payable to “The Town of Camden,” in the amount of
$2,383.07, to the Town’s Clerk, Jamie Fenske (hereinafter “Ms. Fenske”). Mrs.
Goldsmith also provided a $212.00 cash payment to the Town. Mrs. Goldsmith
testified at the hearing that after she submitted these payments to Ms. Fenske, Ms.
Fenske called Mr. Pepper and put him on speakerphone and that Mr. Pepper stated
that the house would not be sold. Ms. Fenske testified that she informed Mrs.
Goldsmith that Mr. Goldsmith still owed money to the Town, and that at no point
did she tell Mrs. Goldsmith that the sale had been cancelled.

On January 25, 2019, Ms. Fenske sent an e-mail to “pitpen68@hotmail.com,”
directing the recipient to “see attached.”? The e-mail attachment was a copy of the

Monition Vendex.* On January 28, 2019, Ms. Fenske forwarded the J anuary 25 e-

 

' At the hearing on September 11, 2019, Mrs. Goldsmith testified that she is responsible for paying
household bills.
* The facts are disputed as to whether Mr. Pepper told Mrs. Goldsmith at some point prior to
January 29 that the sale had been cancelled. As explained later in this order, the Court finds
credible Mr. Pepper’s testimony that he did not tell Mrs. Goldsmith that the sale had been
cancelled.
3 Ms. Fenske sent the e-mail to this address because she mistakenly believed that Mrs. Goldsmith
used it as her e-mail address.
* E-mail from Jamie Fenske to “pitpen68@hotmail.com” (Jan. 25, 2019, 10:52 EST) (contained
in Pl.’s Ex. 1). At the hearing on September 11, 2019, Ms. Fenske testified that the Monition
Vendex contained an itemization of how much money Mr. Goldsmith owed to the Town.

2
mail to Mrs. Goldsmith, because the first e-mail had been sent to “an old email.’
Mrs. Goldsmith replied that she was “working on coming up with the difference.
Who do I need to make the bank check out to?” On January 30, 2019, Mrs.
Goldsmith e-mailed Ms. Fenske to inquire as to whether there was a “drop box” in
which she could place her payment.’ On February 1, 2019, Ms. Fenske e-mailed
Mrs. Goldsmith, telling her that she should contact the Sheriff because Mr.
Goldsmith owed “additional fees.”® At no point during the e-mail exchange did Ms.
Fenske indicate that the sale had been cancelled, nor did Mrs. Goldsmith question
whether the sale was scheduled to proceed. Furthermore, Mrs. Goldsmith testified
at the hearing that she did not pay the outstanding fees prior to the sale because she
had “other things going on” and she “forgot.”

On January 25, 2019, at 5:11 p.m., Frances Gauthier, Esquire (hereinafter
“Ms. Gauthier”), of the Legal Services Corporation of Delaware e-mailed Mr.
Pepper informing him that her office was representing Mr. and Mrs. Goldsmith.’
Ms. Gauthier indicated that she was aware that her purported clients had paid the
outstanding taxes earlier that day, and asked Mr. Pepper to remove the Property from
the January 29 Sheriff's sale list and give Mr. and Mrs. Goldsmith more time to pay
the additional fees, which Ms. Gauthier believed to be $150.'° On January 28, Mr.
Pepper responded that he had “passed [her] request along” to the Town and attached
a copy of the Monition Vendex, informing her that “[t]he vendex is attached”
showing the “actual amount now owed.”'! Shortly thereafter, Mrs. Gauthier asked

whether “the execution costs” were Sheriff's fees, and if there was a “reduction in

 

Id., e-mail from Jamie Fenske to Sherri Goldsmith (Jan. 28, 2019, 8:32 EST).

Id., e-mail from Sherri Goldsmith to Jamie Fenske (Jan. 28, 2019, 9:57 EST).

Id., e-mail from Sherri Goldsmith to Jamie Fenske (Jan. 30, 2019, 10:45 EST).

Id., e-mail from Jamie Fenske to Sherri Goldsmith (Feb. 1, 2019, 9:45 EST).

E-mail from Frances Gauthier to William Pepper, Sr., (Jan. 25, 2019, 17:11 EST) (contained in
Pl.’s Ex. 3).

10 Td.

'l Td, e-mail from William Pepper, Sr., to Frances Gauthier (Jan. 28, 2019, 9:08 EST).

3

aos NTN

‘oO
execution costs if the sale [were] cancelled.”!* Later that day, Mr. Pepper wrote that
the Town was “moving forward with the sale.'!? However, based on communications
between Ms. Fenske and Mrs. Goldsmith, “it seem[ed]” to Mr. Pepper that the matter
would “be resolved before the sale.” '* Mr. Pepper never wrote that the sale was
cancelled, nor did Ms. Gauthier indicate that she thought it had been cancelled.

On January 29, 2019, the Sheriffs sale took place, and DB Capital
Investments, LLC, purchased the Property for $60,000. The sale was confirmed on
February 22, 2019, and the right of redemption expired on April 23, 2019. Mr.
Goldsmith did not redeem the Property. The deed was recorded on May 24, 2019.

II. Discussion

In a case where a property owner is attempting to set aside a monition sale,
the reviewing court will “only consider challenges that strike at the heart of the
[c]ourt’s jurisdiction in the first instance.”'> Upon review, the court must balance
the constitutional principles of due process and fundamental fairness with the
purpose of confirmation, which is to provide the purchaser with assurance of
absolute title to the property.'® The party seeking to set aside the monition sale bears
the burden of establishing a basis for relief.!’

A. The Court Rejects Mr. Goldsmith’s Arguments of Misrepresentation and
Inadequate Sale Price.

Mr. Goldsmith argues in his Motion that the “misrepresentation and
misconduct” of Mr. Pepper and Ms. Fenske led him to believe that the monition sale
had been cancelled, and that it was for this reason that he failed to pay the amount

he owed to the Town.'* However, the evidence does not support this proposition.

 

"2 Id., e-mail from Frances Gauthier to William Pepper, Sr. (Jan. 28, 2019, 9:14 EST).
'> Id., e-mail from William Pepper, Sr., to Frances Gauthier (Jan. 28, 2019, 13:34 EST).
14 Id.
'> New Castle County v. Gallen, 2003 WL 21739069, at *3 (Del. Super. May 27, 2003).
16 Id
"7 Id.
'§ Goldsmith Mot. to Set Aside Monition Sale, J 19, July 9, 2019.

4
Indeed, the conduct of the Goldsmiths themselves demonstrated that the sale had not
been cancelled.

Mr. Pepper and Ms. Fenske testified that they never told Mr. or Mrs.
Goldsmith that the Monition Sale had been cancelled, and the Court finds their
testimony credible. Additionally, in the e-mail exchange between Ms. Fenske and
Mrs. Goldsmith, Mrs. Goldsmith was notified of the outstanding balance and made
indications that she wished to pay it.'? Further, in the e-mail exchange between Mr.
Pepper and Ms. Gauthier, Mr. Pepper provided the Monition Vendex and told Ms.
Gauthier on January 28 that the Town was “moving forward with the sale.””° If Ms.
Gauthier was acting as the attorney for Mr. and Mrs. Goldsmith, her knowledge that
the sale had not been cancelled was imputed to her clients.”!_ However, even if Ms.
Gauthier was not acting as the Goldsmiths’ attorney, Mr. Goldsmith has failed to
explain to the Court why Ms. Gauthier, after being informed by Mrs. Goldsmith that
she (Mrs. Goldsmith) had made the January 25 payment, would be asking Mr.
Pepper to cancel the sale if Mr. Pepper and Ms. Fenske had informed Mrs. Goldsmith
at the time she made the payment that the sale had been cancelled.”

Mr. Goldsmith also argues that the monition sale should be set aside because
the Property sold for an amount far less than its worth. However, Mr. Goldsmith

failed to provide competent evidence to support this contention. Furthermore, this

 

'? E-mail from Sherri Goldsmith, to Jamie Fenske (Jan. 28, 2019, 9:57 EST) (“Who do I need to
make the bank check out to?”).
20 E-mail from William Pepper, Sr., to Frances Gauthier (Jan. 28, 2019, 13:34 EST).
*! Mr. Goldsmith testified on cross-examination at the hearing, without objection from his counsel,
that Mrs. Goldsmith had informed him that she had consulted with a legal aid attorney. See
Gebhart v. Ernest DiSabatino & Sons, Inc., 264 A.2d 157, 160 (Del. 1994) (“each party must be
deemed bound by the acts of his lawyer-agent”); cf In re American Intern. Group, Inc., 965 A.2d
763, 806 (Del. Ch. 2009) (“the knowledge of an agent is normally imputed to the agent’s
principal”).
*2 In her e-mail to Mr. Pepper sent at 5:11 p.m. on January 25, 2019, Ms. Gauthier stated, “I
understand that my clients have already tendered the $2,382.07 tax fee. I am writing to request
that this action be removed from the 1/29 Sheriff sale list.” (Pl.’s Ex. 3).

5
argument was raised after the sale was confirmed.*? Therefore, this argument is
rejected.

B. The Court Rejects Mr. Goldsmith’s Supplemental Argument of
Insufficient Notice.

Mr. Goldsmith argues in his supplemental submission that he should have
received a new notice that the sale was scheduled to proceed once he paid all fees
listed in the Monition Notice. Mr. Goldsmith supports this contention by citing the
portion of the Monition Notice that states that the Town “‘may proceed to sell the
property . . . for the purpose of collecting the judgment for the taxes or assessments
herein stated.’”** Mr. Goldsmith concludes that his payment satisfied the purpose
of the Monition Notice because he paid all costs listed therein, and thus the sale of
the Property was not for the purpose of satisfying the amount originally owed.
Therefore, Mr. Goldsmith concludes that he should have received a new notice that
the sale was scheduled to proceed over fees incurred that were not listed in the

original notice.

However, Mr. Goldsmith’s argument is unpersuasive because it fails to
consider the entire Monition Notice, the language of which must be read in context.
The body of the Monition Notice states, in full:

To all persons having or claiming to have any title,
interest, or lien upon the within described premises, take
warming that unless the judgments for the taxes or
assessment stated herein is paid within twenty days after
the date hereof or within such period of twenty days,
evidence of the payment of the taxes herein claimed shall
be filed in the office of the Prothonotary for Kent County,
Delaware, which evidence shall be in the form of a

 

*? Gallen, 2003 WL 21739069, at *1 (“because the sale has been confirmed (without objection)
[the parties seeking to set aside the sale] cannot be heard to argue that the price paid for the
[p]roperty was inadequate”), *5 (challenge to adequacy of sale price raised after confirmation
“comes too late in the process”).
** Goldsmith Suppl. Submission, at 2, September 25, 2019 (quoting monition notice) (emphasis
removed).

6
receipted tax bill or duplicate thereof, bearing date prior to
the filling [sic] of the lien in the office of the Prothonotary
for Kent County, the Collector of Taxes of the Town of
Camden may proceed to sell the property herein
mentioned or described for the purpose of collecting the
judgment for the taxes or assessments herein stated.”>

Therefore, Mr. Goldsmith had twenty days from the date the Monition Notice was
posted (October 16, 2018) to pay his outstanding taxes and $150.00 in monition
costs. If he failed to do so, then other costs would necessarily be incurred as the
Town moved to complete the monition sale. It is undisputed that Mr. Goldsmith
failed to make the required payments within twenty days of the posting of the
Monition Notice. Mr. Goldsmith was not entitled to a new notice after making the
$2,383.07 and $212.00 payments because, as explained supra, Mr. Goldsmith knew
that other fees remained unpaid and that the Property was still for sale.

Additionally, Mr. Goldsmith’s supplemental argument, if accepted, would
undermine Delaware’s monition sale system. The Town has fiscal requirements and
collects taxes to meet its budget. As the Town proceeds to sale to recoup costs from
unpaid taxes, it necessarily incurs costs to complete the sale. If the municipality
were required to post an additional notice and stop the sale every time it received a
partial payment, it would be caught in a cycle wherein a property owner, delinquent
on his or her taxes, could wait until the day before sale to post a partial payment, and
the property owner could repeat this process to buy time and continually postpone
the sale. Here, the Delaware monition sale system yields ample opportunity for the
property owner to retain his or her home, and also allows the municipality to meet
its financial obligations.

If this Court were to accept Mr. Goldsmith’s argument, then it would fail to

provide the purchaser, DB Capital Investments, with assurance of absolute title to

 

*° Monition Notice (emphasis supplied).
the property — a clear requirement under Delaware law.*® Here, Mr. Goldsmith’s
argument is rejected because “the process must be protected. Otherwise, nothing is
final.”?’

II. Conclusion

As this Court recognized in Gallen, where, as here, a Sheriff's sale is
challenged for the first time after confirmation, “the court must balance the good
faith purchaser’s right to finality in the process against the property owner’s (and the
public’s) interest in ensuring that procedural safeguards have been employed

28 In this case, the Town properly employed procedural safeguards,

properly.
including applicable notice requirements, and there was no fraud surrounding the
sale. Specifically, Mr. Goldsmith was afforded ample time to pay his taxes along
with additional costs incurred by the Town, and was given sufficient notice of the
sale — and the Goldsmiths were never informed that the sale would be canceled.
Therefore, there is no basis for this Court to overturn the sale.

The decision to overturn a Sheriff’s sale “rests in the sound discretion of the
court.””? Nonetheless, overturning the sale in this case would represent an abuse of
discretion, where all procedural requirements have been followed and no competent
evidence was presented regarding inadequacy of price (and furthermore the latter
issue was raised too late, i.¢., after confirmation). Certainly the Court is not without
sympathy for Mr. Goldsmith, a disabled veteran threatened with the loss of his home
as a result of the sale. However, to overturn the Sheriff's sale out of sympathy for
Mr. Goldsmith would do violence to the principles that veterans like him have fought

to preserve — principles that are grounded, first and foremost, in a respect for the rule

of law. The Town and the citizens it represents are also entitled to the confidence

 

*° Gallen, 2003 WL 21739069, at *3 (“the primary purpose of confirmation is to provide the good
faith purchaser at Sheriff's sale a fixed point in the process ‘where he becomes assured of absolute
title and the peace attendant thereto”) (quoting Ward v. Gray, 374 A.2d 15, 16 (Del. Super. 1977)).
*7 Dep't of Fin. v. LaRosa Corp., 2003 WL 23274836, at *2 (Del. Super. Dec. 17, 2003).
*8 Gallen, 2003 WL 21739069, at *5 (citing Ward, 374 A.2d at 16).
” Id. (citing Burge v. Fidelity Bond and Mortg. Co., 648 A.2d 414, 419 (Del. 1994).

8
that established procedures surrounding the sale of property resulting from
nonpayment of taxes will be respected and observed by the judiciary. For this Court
to do any less would threaten the freedoms that are the hallmark of our governmental
system.

WHEREFORE, for the foregoing reasons, Mr. Goldsmith’s Motion to Set
Aside the Monition Sale is DENIED.

 

IT ISSO ORDERED.
/s/ Noel Eason Primos
Judge
NEP/wjs
Via File & ServeXpress

oc: Prothonotary
Counsel of Record
