IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILMINGTON SAVINGS FUND
SOCIETY, FSB, d.b.a CHRISTIANA
TRUST, not individually but as Trustee
for Ventures Trust,
Plaintiff
C.A. No.: Sl4L-l 1-009-RFS
v.

WENDY GILLETTE,
Defendant

ORDER
Upon Def`endant’s Motion for Reargument. Denied.

Date Submitted: April 26, 2017
Date Decided: May 3, 2017

Antranig N. Garibian, Esq., Garibian Law Offices, P.C., 1010 Bancrof`t Parkway, Suite 22,
Wilmington, DE 19805, Attomey for Plaintiff

John R. Weaver, Esq., John R. Weaver, P.A., 831 North Tatnall Street, Suite 200,
Wilmington, DE 19801, Attomey f`or Defendant

I. INTRODUCTION

On April 5, 2017, Defendant Wendy Gillette (“Defendant”) timely filed her Motion for
Rcargument concerning the Court’s March 29, 2017 memorandum opinion granting Plaintif`f’ s
Motion f`or Summary Judgment. Defendant contends that the Court erred by failing to recognize
that relief could not be granted under the mortgage contract because a condition precedent had not
been satisfied On April 26, 2017, Plaintiff Wilmington Savings Fund Society, FSB, d.b.a.
Christiana Trust, not individually but as Trustee for Ventures Trust (“Plaintiff”) filed its response to

Defendant’s Motion, Which in large part pointed out that the Defendant’s argument Was not raised

prior to this Motion and that Delaware law regarding notice of a mortgage foreclosure was correctly

applied.
II. STANDARD OF REVIEW

The standard of review for a motion for reargument under Superior Court Rule of Civil
Procedure 59(e) is well settled law. Such a motion “will be denied unless the Court has overlooked
a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as
would have changed the outcome of the underlying decision.”l Furthermore, a motion for
reargument is not intended to raise new arguments which could have been raised at an earlier point

in the proceedings2
III. DISCUSSION

Here, Defendant is seeking to raise new arguments in her Motion for Reargument that were
not asserted in her Answer to the Complaint. She takes issue with the Court’s ruling that it is well-
settled law in Delaware that all notice requirements associated with a scire facias sur mortgage
action will be satisfied by the filing of a complaint for foreclosure Defendant argues that “it is also
well-settled Delaware law that a party to a contract must satisfy all conditions precedent to avail
said party of any right to remedies under the contract.”3 She further claims that satisfaction of the
notice provision in Paragraph 22 of the Mortgage Agreement was a condition precedent to the
contract.4 Defendant distinguishes the cases cited in the Court’s decision granting summary

judgment to the Plaintiff on the ground that the contracts underlying those cases did not contain

 

l Boara' of Managers of the Delaware Criminal Justice In_formation System v. Gannett Co., 2003 WL 1579170, at *1
(Del. Super. Ct Jan. l7, 2003)(intemal citations omitted).

2 Id.; Plummer v. Sherman, 2004 WL 63414, at *2 (Del. Super. Ct. Jan. 14, 2004)(internal citations omitted).

3 Def.’s Mot. Rearg.

4 ld.

notice provisions5 This argument was not presented in Defendant’s Answer to the Complaint.6

Therefore, the issue has been waived,

Moreover, even if this argument had not been waived, Defendant would not prevail.
Defendant’s reliance on basic contract law principles to assert that a condition precedent was not
met ignores the fact that Delaware law on this issue is dispositive As stated in the decision
granting summary judgment, “It is well-settled law in Delaware that ‘the filing of a complaint for
foreclosure “constitutes notice of the most unequivocal character that the mortgagee wishes to avail
himself of the acceleration provision of the mortgage””’7 Given the clearness of the law, it would
be inapposite to find that proper notice had not been given in this case and that the failure of the

condition precedent should allow Defendant to prevail.
IV. CONCLUSION

Considering the foregoing, the Court finds that no controlling precedent or legal principle
has been overlooked and that there has been no misapprehension of the law. Therefore,

Defendant’s Motion for Reargument is DENIED.

IT IS SO ORDERED.

    

_ Richard F. Stokes, Judge

 

5 ld.

6 Answer. The Court notes that this argument was presented in Defendant’s Response to Plaintist Motion for
Summary Judgment; but this is insufficient, as the argument was not pled in the Answer or presented as any affirmative
defense

7 Wilmington Sav. Fund Soc., F.S.B. v. Meconi, 1989 WL 124888, at *4 (Del. Super. Ct. Oct. 3, l989)(internal citations
omitted); Kennedy v. Gianonne, 1987 WL 37799, at *l (Del. June 16, 1897); LaSalle Nat. Bank v. Ingram, 2006 WL
1679418, at *2, (Del. Super. Ct. May 16, 2006); U.S. Sav. Bank ofNewark, N.J. v. Continental Arms, Inc., 338 A.2d
579, 583 (Del. Super. Ct. 1983).

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