Donald E. Polk, Jr. v. Dennis R. Stewart and Joyce A Stewart

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DONALD E. POLK, JR., )
)
Plaintiff, )
)
v. ) C.A. No. 2021-1074-BWD
)
DENNIS R. STEWART and JOYCE A. )
STEWART, )
)
Defendants. )

POST-TRIAL MEMORANDUM OPINION

Date Submitted: December 20, 2024
Date Decided: January 8, 2025

Dean Campbell, LAW OFFICE OF DEAN A. CAMPBELL, P.A., Milton,
Delaware; Attorneys for Plaintiff Donald E. Polk, Jr.

David C. Zerbato and Caren L. Sydnor, MORTON, VALIHURA & ZERBATO,
LLC; Attorneys for Defendants Dennis R. Stewart and Joyce A. Stewart.

DAVID, V.C.
Through this action, plaintiff Donald E. Polk, Jr. (“Plaintiff”) seeks specific

performance of a land installment contract through which he agreed to purchase, and

defendants Dennis R. Stewart and Joyce A. Stewart (“Defendants”) agreed to sell,

real property in Millsboro, Delaware. For reasons explained below, Plaintiff’s

request for specific performance is denied and judgment is entered for Defendants.

I. BACKGROUND

The following facts are drawn from factual stipulations in the parties’ Pre-

Trial Stipulation and Order and the evidence presented at a one-day trial held on July

9, 2024.1

A. Plaintiff And Defendants Execute An Installment Contract.

This action concerns real property located at 32751 Spring Water Drive in

Millsboro, Delaware (the “Property”).2 Plaintiff and his former wife began renting

the Property from Defendants in February 2010.3 Plaintiff and his wife divorced,

and in early 2015, Mr. Stewart informed Plaintiff that Defendants planned to retire

and wished to sell the Property.4 Plaintiff expressed an interest in purchasing the

1
The Pre-Trial Stipulation and Order is cited as “PTS ¶ __.” Trial testimony is cited as
“Tr. (Witness) at __.” Although the parties labeled some exhibits as “JX” and others as
“PX” or “DX,” for consistency, all trial exhibits are cited as “JX __.”
2
JX 1 ¶ 1.
3
See Tr. (Polk) at 6.
4
Id. at 7.
Property, but knew he could not obtain financing because his credit was impaired as

a result of the divorce.5 Because Plaintiff otherwise would not have been able to

purchase the Property, Defendants offered to allow Plaintiff to purchase the Property

in installments over a five-year period.6

On June 19, 2015, Plaintiff and Defendants entered into an Installment Land

Sales Contract (the “Installment Contract”) under which Plaintiff agreed to purchase,

and Defendants agreed to sell, the Property in installments for a total purchase price

of $303,000.00, plus interest.7 The Installment Contract required Plaintiff to make

an initial payment of $1,900.00 on July 1, 2015, and then to pay monthly installments

of $1,900.008 over five years, with the unpaid balance and accrued interest due in

five years—by June 30, 2020.9 The Installment Contract also stated that the

5
Id.
6
Id. at 9.
7
PTS § 3, ¶ 1; JX 1 ¶ 2.
8
At trial, Plaintiff testified that the $1,900.00 per month installment payment was an error,
and that the parties instead intended to include a monthly installment payment of
$1,700.00. See Tr. (Polk) at 10. Because Paragraph 2 of the Installment Contract
references “monthly installments of $1,900.00 ($438.46 per week)[,]” Plaintiff argued that
“if you take the $438.46 and times it by four, it comes up to . . . $1,753[,]” which is closer
to $1,700.00 than $1,900.00. Id. at 11; see JX 1 ¶ 2. Plaintiff’s calculation, however, does
not account for months with five weeks. A weekly payment of $438.46 multiplied by fifty-
two weeks in a year supports a $1,900.00 monthly payment. Mr. Stewart also testified,
credibly, that the parties never discussed or agreed to a $1,700.00 installment payment. Tr.
(Stewart) at 121.
9
JX 1 ¶ 2.

2
Defendants “shall extend for a period of six (6) months the payment of the remaining

principal balance if requested to do so by [Plaintiff].”10

The Installment Contract stated that “[t]he periodic rental value of the

property shall be equal to $1,425.00” and “[i]n the event of [Plaintiffs]’s default the

monthly rental value shall be non-refundable but all other sums paid (i.e. principal

payments) shall be considered as down payments to the principal amount due.”11

The Installment Contract further stated that “[i]n the event of [Plaintiff]’s

default for failure to pay, the [Plaintiff] shall still have the right to redeem the

property by making full payment of the remaining contract amount within 120 days

of the [Defendants] providing written notice of the default.”12 However, it also

provided that:

If [Plaintiff] fails to redeem the property by making full payment within
120 days, this contract shall convert by law to a landlord agreement
after the default, wherein rent shall be the rental value established in
paragraph 4 and all payments in excess of that amount shall be first
credited to costs of repair, then to arrears in rent, and any amounts
remaining in excess of that allowable by 25 Del. C. § 5514 shall be paid
to the [Plaintiff].13

10
Id.
11
Id. ¶ 4.
12
Id.
13
Id. ¶ 5.

3
B. The Parties Extend The Installment Contract.

Over the next five years, Plaintiff was short or late on installment payments

nearly every month.14 Nevertheless, on January 1, 2019, Mr. Stewart told Plaintiff

in an email that Plaintiff “ha[d] done a great job in making payments on [their]

Installment Land Agreement.”15 Mr. Stewart explained, however, that due to health

problems, Defendants would not “be able to renew the contract” after it expired in

eighteen months.16 Mr. Stewart told Plaintiff that “[i]f you want to include your

mom that is ok by me” and “I will do whatever I can to help you secure a

mortgage.”17

Unbeknownst to Defendants, and in breach of the Installment Contract,18 in

August 2019, Plaintiff began subleasing the Property on Airbnb.19 During that time,

14
See JX 15; JX 16; Tr. (Polk) at 15 (“I told Mr. Stewart, when I went through my divorce,
it hit me pretty hard. And when I made payments to Mr. Stewart, I didn’t always make the
[$]1700[.00] on the first of the month. I would pay things weekly. I would pay things
throughout the month. And if I could pay more, I would pay more. If I was short, I would
pay extra that way.”).
15
JX 9.
16
Id.
17
Id.
18
See JX 1 ¶ 17.
19
JX 21; Tr. (Polk) at 85.

4
Plaintiff continued to be late and short on rental payments,20 despite receiving at

least $1,600.00 per month from renters.21

On September 8, 2019, Mr. Stewart wrote Plaintiff an email asking when

Plaintiff would be sending his August installment payment and whether he had

“thought about having [Plaintiff’s] mother as a co[-]signer[.]”22 As the June 2020

closing date approached, Mr. Stewart stated that he “would be willing to go a few

more months but . . . would like to settle by the end of October 2020.”23

On August 15, 2020, Defendants provided Plaintiff with an amended

Installment Contract (the “Amendment”), which Plaintiff executed on September 19,

2020.24 The Amendment extended the Installment Contract through December 31,

2020, and stated that “[t]he amortization schedule reflects a principal balance of

$272,500 as of December 31, 2020, but [Defendants] will reduce the principal to

$260,000, which is a $12,500 discount, if settlement occurs by December 31,

20
See Tr. (J. Motsco) at 168 (“[E]very single month the payment was short. So [Mr.
Stewart] had to take from his savings in order to, you know, pay the rest of the mortgage.”).
21
See JX 16; Tr. (Polk) at 85 (“I don’t think [the Airbnb rent] was [$]16 [hundred]. I think
it might have been more.”).
22
JX 8.
23
Id.
24
Tr. (Polk) at 64; JX 3.

5
2020.”25 In exchange, the Amendment required Plaintiff to “either . . . settle or

vacate [the Property] by December 31, 2020.”26

C. Defendants Reject Donna’s Offer To Purchase The Property.

At trial, Plaintiff testified that in October 2020, his sister, Donna, agreed to

loan him the funds to purchase the Property.27 That was not true. When asked

whether Donna would have written Plaintiff a check for the purchase price, she

testified that she “wouldn’t have done that” but “was qualified to purchase the home”

herself.28 Donna further explained that she “was getting a loan to purchase the

property[,]” and she “would have to pay the loan, but it would be in conjunction with

[Plaintiff] really assuming responsibility for the property.”29 In other words, the

“loan would be in [Donna’s] name” and Plaintiff would “giv[e] the money to [her]

to make sure that [she was] paying it because it[] [would be] in [her] name.”30

On November 13, 2020, Plaintiff texted Mr. Stewart, inquiring about the

square footage of the Property.31 The same day, Mr. Stewart responded with the

25
JX 3 ¶ 1.
26
Id. ¶ 3.
27
See Tr. (Polk) at 22; id. at 28.
28
Id. (D. Polk) at 113.
29
Id. at 107.
30
Id. at 108.
31
JX 6.

6
square footage.32 On November 27, Mr. Stewart asked if Plaintiff had mailed a

check for the balance of the September installment payment, explaining that “[i]f we

close in December I will consider waiving the Oct and Nov payments which are past

due.”33 Plaintiff responded that he would “mail Monday[,]”34 but never made

another installment payment.35

On November 28, Mr. Stewart texted Plaintiff, asking him to “please be

honest with” him about whether the parties would “have a settlement in

December[,]” and requesting information about Plaintiff’s loan provider.36 On

December 1, Mr. Stewart again asked to “know [Plaintiff’s] status” and whether

Plaintiff had “mail[ed] a check[,]” but Plaintiff did not respond.37

The next day, Plaintiff informed Mr. Stewart that his sister Donna would be

securing financing to purchase the Property.38 Mr. Stewart responded that he was

not willing to sell the Property at the Installment Contract price to anyone but

32
Id.
33
Id.
34
Id.
35
See Tr. (Polk) at 39 (“I didn’t pay November nor December because I’m thinking we’re
transitioning into me giving him the money for the property.”); id. at 45 (“I made my last
payment, partial payment of October.”).
36
JX 6.
37
Id.
38
See id.; Tr. (Stewart) at 132 (“Donald mentioned to me that his sister could buy the house.
And I told Donald that, you know, she’s not on the contract . . . .”); id. at 133–34.

7
Plaintiff, but that he was willing to sell the Property to another buyer for

$279,000.00:

In our contract[,] if you cannot buy the house[,] then the contract turns
into a rental contract. After you move out[,] we are responsible for
getting [the] house ready to go on [the] market. The price we were
going to list the property is $290,000. I am calculating that the money
that would be returned to you would be in the $10,000 range after repair
costs and deducting the non[-]payment of Oct, Nov and Dec 2020
which totals about $5,500. To sell the house to someone other th[a]n
you at $260,000[,] I would waive the Oct, Nov, Dec payments and pay
you $4,500 when we settle with buyer. This would total $10,000. If
you agree we will get [a] document prepared indicating this.
Otherwise[,] you will need to vacate the house by 12/31/2020 and wait
for [the] house to be sold[,] then you would get your money. If I would
have know[n] about buyer[,] I would have told you that [for] anyone
other th[a]n you[,] the price is $279,000.39

Donna did not agree to purchase the Property for $279,000.00 at that time.

D. Plaintiff Informs Defendants He Cannot Settle On The Property.

On December 3, 2020, Mr. Stewart told Plaintiff that his daughter, Jeanene

Motsco, would be “handling . . . this situation” because Mr. Stewart had become

“to[o] sick to handle it” anymore.40

39
JX 6.
40
Id.; see also Tr. (J. Motsco) at 167 (Jeanene Motsco explaining that she became involved
in discussions with Plaintiff because her “mom had a stroke back in 2019, which left her
unable to speak . . . she needed care 24/7. And my dad was taking care of her, trying to
manage day-to-day things, and it was just becoming too much. He became sick as well”).

8
On December 5, Ms. Motsco; her husband, Jeffrey Motsco; and Plaintiff

spoke on the telephone.41 The Motscos each credibly testified that on that call,

Plaintiff stated “point-blank” that he had “no intention” of settling on the Property,42

and the three discussed the date that Plaintiff would vacate the Property.43

Consistent with that discussion, on December 16, Ms. Motsco sent Plaintiff a draft

“Moveout Agreement”44 that stated:

1. Date to vacate will move from December 31, 2020 to January 10,
2021 with a pro-rated payment of $633 being due for January 1,
2021 to January 10, 2021.

2. All other past payments will be due including any late fees.

3. House is returned with keys, pool passes, and in the same
condition as when you moved in except for normal wear and tear
to paint and carpet—including, but not limited to having been
thoroughly cleaned and all personal property completely
removed by the above date.45

41
Id. at 170–71; id. (Jeffrey Motsco) at 190–91.
42
Id. (J. Motsco) at 170; see also id. (Jeffrey Motsco) at 191 (“During that phone call we
had asked if he had any intention to settle or the ability to settle. And he said, no, I do not
have any ability or intention to settle—by the December 31st deadline, that is.”).
43
Id. (J. Motsco) at 170–71; id. (Jeffrey Motsco) at 191.
44
JX 4; JX 5.
45
JX 4 ¶¶ 1–3.

9
Ms. Motsco followed up with Plaintiff on December 21, but Plaintiff did not

respond.46 On December 23, Mr. Stewart texted Plaintiff, asking Plaintiff to call him

or Ms. Motsco because they “need[ed] to know what [Plaintiff] [was] doing!”47

The next day, Mr. Stewart texted Plaintiff again, explaining:

Donald. As you can see[,] I am not sleeping at night and I am struggling
to take care of my wife as well as myself. This is why I asked [Jeanene]
to work with you. I think you would agree that I have been fair with
you and tried to work with you on the house. Please don’t make it
difficult for me now. You are a good honest person so please don’t let
me think otherwise. Thank you! . . . We look forward to talking to
you and getting everything resolved.48

Plaintiff responded that he was “not signing [Defendants’] daughter[’]s

contract[,]” and would “be sending [Defendants] a check[,]” but “[g]etting out at the

end of the month w[ould] not happen to have the place clean and ready for

[Defendants].”49 Mr. Stewart asked if Plaintiff would move out on January 10 and

if there was something he could “do other than extend the vacate date to Jan. 10?”50

On December 26, Mr. Stewart and Plaintiff spoke on the phone, during which

Plaintiff again stated that he did not intend to settle on the Property by December

46
JX 5.
47
JX 6.
48
Id.
49
Id.
50
Id.

10
31.51 On December 17, Plaintiff texted Mr. Stewart, “[w]hen the house is sold, how

much money will I get?”52 Mr. Stewart responded, “[r]ight now I cannot tell you

how much. I will however make sure everything is documented for you.”53

E. Plaintiff Informs Defendants He May Be Able To Settle On The
Property.

While Defendants were urging Plaintiff to agree to a plan to vacate the

Property, his sister Donna continued pursuing a mortgage to purchase the Property.54

On December 28, 2020, Plaintiff texted Mr. Stewart that he had “just left from

the mortgage company” and thought he would “be approved.”55 Although Plaintiff

told Mr. Stewart that Plaintiff had found a lender, that was not true. Donna applied

for a mortgage to purchase the Property on December 21, despite Defendants

declining to sell the Property to her earlier that month.56 As reflected in a pre-

qualification letter received months later, Plaintiff was not included on Donna’s

mortgage paperwork; her mortgage approval was conditioned on a “signed contract

51
See id.; Tr. (Stewart) at 137.
52
JX 6.
53
Id.
54
See JX 11 (email from SECU mortgage loan officer to Donna Polk asking to review her
loan application); Tr. (Polk) at 23–24 (admitting Plaintiff did not inform Defendants of his
efforts to obtain financing through his sister Donna).
55
JX 6.
56
See id.; JX 11.

11
of sale”; and her “[q]ualification was based on the purchase of a[n] Owner Occupied

PUD Detached.”57 Plaintiff was not approved for a mortgage.58

In any event, Mr. Stewart told Plaintiff the same day that Plaintiff “previously

expressed the inability to settle by the end of the year, which is this Thursday. Per

our discussion Saturday, we expect you to be out of the house by January 10,

2021.”59 Plaintiff responded, “I didn’t think we would be having any issues.

Because I was turned down with one lender doesn’t mean I would stop looking.

Now that I have found one[,] I didn’t think it would be a problem.”60 Mr. Stewart

then explained,

Per our agreement you signed in September, we gave you the option to
settle by December 31, 2020. Our subsequent conversations confirmed
that you could not settle by Thursday. For your convenience only, we
agreed to allow you to finish moving out by January 10, 2021. At this
time, we do not have an agreement to sell the house to you. We expect
you to vacate the house by January 10, 2021. I understand you are
concerned about getting money back after we sell the house. At this
time[,] we don’t have an exact figure but will document everything and
provide it to you as soon as it’s available.61

57
See JX 13 (emphasis added).
58
Plaintiff did obtain a pre-qualification financing letter from a bank years later, on
September 25, 2023. See JX 12.
59
JX 6.
60
Id.
61
Id.

12
Plaintiff claims that after receiving this communication, both he and Donna ceased

efforts to obtain financing.62

F. Defendants Discover Plaintiff Has Been Sub-Leasing The Property
And Again Reject Donna’s Offer To Purchase The Property.

In early January 2021, Defendants visited the Property to collect Plaintiff’s

keys.63 When they arrived, they discovered that Plaintiff was not occupying the

Property, but, instead, had been subleasing it in violation of the Installment

Contract.64

On February 27, 2021, Ms. Motsco texted Plaintiff that Defendants had turned

the matter over to their attorneys and requested that Plaintiff’s renters vacate the

Property by March 1.65 Plaintiff responded that he would not be returning the keys

to the Property by March 1.66 Ms. Motsco reminded him that if he did not vacate

the Property by March 1, he would be six months behind on rent.67 Plaintiff

responded, “[a]ll we want to do is buy the house.”68

62
See Tr. (Polk) at 37–38; id. (D. Polk) at 103.
63
See id. (J. Motsco) at 176.
64
See id.; see also JX 23.
65
JX 6.
66
Id.
67
Id.
68
Id.

13
On August 19, 2021, Plaintiff emailed Mr. Stewart, stating that his “sister

[wa]s willing to give [Defendants] $270,000” for the Property.69 Defendants once

again rejected Donna’s offer to purchase the Property.70

G. Procedural History

Plaintiff initiated this action on December 10, 2021, through the filing of a

Complaint for Specific Performance.71 Plaintiff returned possession of the Property

to Defendants on January 6, 2022.72

On October 11, 2022, Vice Chancellor Glasscock, to whom this action

previously was assigned, denied Defendants’ motion to dismiss the action.73

Defendants asserted counterclaims for nonpayment of rent, breach of contract, and

unjust enrichment.74 On April 8, 2024, the action was reassigned to me, and on April

69
JX 10.
70
Id.
71
Dkt. 1.
72
PTS § 3, ¶ 6. On March 9, 2021, the Stewarts initiated an action for summary possession
in the Justice of the Peace Court. See JX 24, Stewart v. Polk, JP17-21-001033 (Del. J.P.
Sept. 14, 2021). The court found that “[Polk] failed to complete those transactions to close
the conditional sales agreement. [The Stewarts] gave [Polk] extra time to complete those
obligations. [Polk] did not do so, but proposed an alternative, which was rejected.” The
court further held that the parties’ “relationship [wa]s now most certainly one of landlord
and tenant[,]” and dismissed the summary possession action.
73
Dkt. 19.
74
Defs.’ Answer to Pl.’s Compl. for Specific Performance 11–20, Dkt. 21.

14
10, I denied Defendants’ motion for summary judgment because the motion

implicated fact questions that would be resolved most efficiently after trial.75

The Court held a one-day trial on July 9, 2024.76 Post-trial briefing concluded

on December 20, 2024.77

II. ANALYSIS

A. Plaintiff Is Not Entitled To An Award Of Specific Performance.

Through this action, Plaintiff seeks an order specifically enforcing the

Installment Contract and requiring Defendants to sell the Property to Plaintiff.

“Specific performance for the transfer of real property is an extraordinary remedy

and [Delaware courts] will not award it lightly.” Osborn ex rel. Osborn v. Kemp,

991 A.2d 1153, 1158 (Del. 2010) (first citing Szambelak v. Tsipouras, 2007 WL

4179315, at *1 (Del. Ch. Nov. 19, 2007); and then citing Morabito v. Harris, 2002

WL 550117, at *1 (Del. Ch. Mar. 26, 2002)). “A party must prove by clear and

convincing evidence that he or she is entitled to specific performance and that he or

she has no adequate legal remedy. A party seeking specific performance must

establish that (1) a valid contract exists, (2) he is ready, willing, and able to perform,

75
Dkts. 45–46.
76
Dkt. 53.
77
See Pl.’s Op. Post-Trial Br. [hereinafter POB], Dkt. 60; Defs.’ Post-Trial Answering Br.
[hereinafter DAB], Dkt. 62; Pl.’s Post-Trial Reply Br. [hereinafter PRB], Dkt. 63.

15
and (3) that the balance of equities tips in favor of the party seeking performance.”

Id. (footnotes omitted) (first citing United Rentals, Inc. v. RAM Hldgs., Inc., 937

A.2d 810, 834 n.112 (Del. Ch. 2007); then citing Deene v. Peterman, 2007 WL

2162570, at *5 (Del. Ch. July 12, 2007); then citing W. Willow-Bay Ct., LLC v.

Robino-Bay Ct. Plaza, LLC, 2007 WL 3317551, at *12 (Del .Ch. Nov. 2, 2007); and

then citing Morabito, 2002 WL 550117, at *2).

The parties dispute who repudiated the Installment Contract first. According

to Plaintiff, Defendants repudiated the contract on December 28, 2020,78 when Mr.

Stewart informed Plaintiff via text that the parties no longer “ha[d] an agreement to

sell the house to” Plaintiff.79 Plaintiff contends that Defendants’ repudiation “caused

[him] to suspend his anticipated performance”80 because at that point, he “had no

practical choice but to stop all financing efforts.”81

In fact, it was not Defendants, but Plaintiff, who first repudiated the contract.

“[A] statement by a party that it cannot or will not perform in accordance with the

parties’ agreement operates as a repudiation.” 13 Williston on Contracts § 39:40

(4th ed.), Westlaw (database updated May 2024). Plaintiff repudiated the

78
POB at 8.
79
JX 6.
80
POB at 9.
81
Id. at 14.

16
Installment Contract on December 5, 2020, when he informed the Motscos “point-

blank” that he had “no intention” of settling on the Property, and instead discussed

the date Plaintiff would vacate the Property. And on December 26, 2020, on a phone

call with Mr. Stewart, Plaintiff reiterated that he did not intend to settle on the

Property by December 31, 2020.

Plaintiff attempted to retract his repudiation on December 28, when he texted

Mr. Stewart that he had “just left from the mortgage company” and thought he would

“be approved.” But a repudiating party may retract his repudiation only if “the

retraction comes to the attention of the injured party before he materially changes

his position in reliance on the repudiation or indicates to the other party that he

considers the repudiation to be final.” Restatement (Second) of Contracts § 256(1)

(Am. Law Inst. 1981). The record strongly suggests that Defendants treated

Plaintiff’s repudiation as final and communicated that to him as the parties

negotiated the terms under which Plaintiff would vacate the Property.82

But even if Plaintiff had effectively retracted his repudiation, his claim for

specific performance fails for another reason. Assuming it was not Plaintiff, but

Defendants, who repudiated the contract on December 28, the record makes clear

82
See, e.g., JX 4 (“Moveout” Agreement dated December 16, 2020).

17
that Plaintiff would not have had the financing to close either by the December 31,

2020 closing date or within 120 days thereafter.83

[W]hen a seller’s repudiation [i]s claimed to have excused the buyer
from performing the condition precedent of acquiring agreed upon
financing, it [i]s not necessary for the buyer to prove, as part of its cause
of action for specific performance, that it would have satisfied the
condition precedent prior to closing since that proof may not be
available, especially if the seller’s breach caused the buyer to forgo
further efforts to obtain financing or caused the lender to cease its
activity; rather, the burden of proof is on the seller to establish that,
regardless of the improper repudiation, the condition precedent of
providing the required financing would not have been satisfied.

13 Williston on Contracts § 39:41 (4th ed.) (emphasis added).

At trial, Defendants carried their burden to prove that regardless of any

repudiation, Plaintiff could not have obtained the necessary financing to close on the

83
Title 25, Section 314(d)(2) of the Delaware Code states that “parties may agree, under
the contract of sale to not engage in a final settlement until fulfillment of a condition of
paying the last installment of the purchase price under a conditional sale, provided that the
conditional sales agreement includes provisions indicating: . . . (2) In the event of buyer or
buyers default for failure to pay, the buyer or buyers have a right to redeem the property
by making full payment of the remaining contract amount within 120 days of the seller or
sellers providing written notice of the default . . . .” 25 Del. C. § 314(d)(2). According to
Plaintiff, under Section 314, Plaintiff was entitled to an additional 120 days beyond
December 31, 2020 to close on the Property. This argument ignores that Defendants had
already extended Plaintiff’s payment of the remaining principal balance for six months, a
period greater than 120 days, and in return, Plaintiff expressly agreed that he would “settle
or vacate [the Property] by December 31, 2020.” JX 3.

18
sale. Plaintiff admitted he did not have the funds to purchase the Property.84 Plaintiff

repeatedly pursued, but was denied, financing; by December 5, 2020, he had

accepted that he would not be able to obtain a mortgage to purchase the Property

himself.85 Although Plaintiff told Mr. Stewart on December 28 that he thought he

had found a lender, that was not true.86 Instead, Donna had applied for a mortgage

to purchase the Property87—but she was not a party to the Installment Contract, and

Defendants had already declined to sell the Property to Donna.88 Eight months later,

well after any 120-day cure period, Plaintiff told Defendants that Donna “[wa]s

willing to give [Defendants] $270,000” for the Property, but plainly still did not have

the funds to purchase it himself.89

84
See Tr. (Polk) at 47–48 (Plaintiff testifying that he was not able to obtain financing “from
a conventional bank” by December 31, 2020); see also POB at 17 (“[Plaintiff] did not have
the means to withdraw $260,000 from his bank account. . . . [Plaintiff] needed lender
support to make this purchase.”).
85
See Tr. (J. Motsco) at 170; see also id. (Jeffrey Motsco) at 191 (“During that phone call
we had asked if he had any intention to settle or the ability to settle. And he said, no, I do
not have any ability or intention to settle—by the December 31st deadline, that is.”).
86
In fact, Plaintiff was not approved for a mortgage until September 25, 2023, nearly three
years after the amended closing date and almost two and a half years after the expiration
of the 120-day cure period. See JX 12 (approval letter from Evolve Bank & Trust Mortgage
dated September 25, 2023).
87
JX 11.
88
See JX 6 (“If I would have know[n] about buyer I would have told you that [for] anyone
other th[a]n you[,] the price is $279,000.”).
89
JX 10.

19
Because the record makes clear that Plaintiff did not have, and could not have

obtained, the financing necessary to purchase the Property by the closing date or

within any cure period thereafter, Plaintiff’s claim for specific performance must be

denied.

Because Plaintiff was not (and, even in the absence of any repudiation by

Defendants, would not have been) ready, willing, and able to perform, the Court

does not need to definitively resolve whether the balance of equities tips in Plaintiff’s

favor. But it bears noting that the equities here tend to (strongly) favor Defendants.

During the first three years of the Installment Contract, at least a third of Plaintiff’s

thirty-six monthly payments were short, and all were late.90 Plaintiff took advantage

of the kindness of an elderly couple who urgently needed to sell their property due

to health issues, but who were willing to accommodate Plaintiff despite his repeated

breaches because they believed he was a “good[,] honest person”91 trying to stay in

a house that had become his home. They did not know that he no longer lived at the

Property, began subleasing it without Defendants’ consent, and was accepting rent

from third parties while failing to make timely installment payments or pay property

taxes or liability insurance as required by the Installment Contract. Even while

90
See JX 15; JX 16.
91
See JX 6.

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Plaintiff claimed that “[a]ll [h]e want[ed] to do [wa]s buy the house[,]” he never paid

another installment payment after November 2020, despite retaining the Property

until January 2022. The equities of this case do not support an order of specific

performance, even if the other elements of specific performance were met (and they

are not).

Plaintiff’s request for an order of specific performance is, therefore, denied.

B. Defendants Are Entitled To Damages.

At trial, Defendants established that they are entitled to damages under the

Installment Contract as follows.

Under the Installment Contract, during the sixty-six-month period from July

2015 through December 2020:

 Plaintiff owed Defendants $1,900.00 per month, totaling

$125,400.00.92

 Plaintiff owed Defendants a $50.00 late fee for all sixty-six months,

totaling $3,300.00.93

 Plaintiff owed Defendants $6,565.63 in property taxes.94

92
JX 1 ¶ 2; JX 15; JX 16.
93
See JX 1 ¶ 11; JX 16.
94
See JX 1 ¶ 7; JX 16; JX 19; JX 20; DAB at 43.

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 Plaintiff owed Defendants $3,600.00 for insurance and homeowners’

association dues.95

 Plaintiff paid Defendants a total of $123,420.16, resulting in a balance

of $15,445.47 that Plaintiff owed to Defendants.96

After the Installment Contract was terminated, Plaintiff retained possession of

the Property for an additional twelve months and six days, from January 2021

through January 6, 2022. For that period:

 Plaintiff owed Defendants $1,425.00 per month in rent, totaling

$17,385.00.97

 Plaintiff owed Defendants a $50.00 late fee for thirteen months, totaling

$650.00, and resulting in an additional balance of $18,035.00 that

Plaintiff owed to Defendants.98

The Installment Contract provides that if Plaintiff fails to redeem the Property,

“any amounts remaining in excess of that allowable by 25 Del. C. § 5514 shall be

paid to [Plaintiff].”99 Under that provision, Plaintiff is entitled to a $475.00 per

95
Id.
96
JX 1 ¶ 2; JX 2; JX 15; JX 16.
97
JX 1 ¶¶ 4–5, 12; JX 15; JX 16; JX 24.
98
See PTS § 3, ¶ 7.
99
JX 1 ¶ 5.

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month credit for the difference between the $1,900.00 sale value and $1,425.00

rental value for sixty-six months, resulting in a total credit of $31,350.00.

With the $31,350.00 credit subtracted from the $33,480.47 that Plaintiff owed

to Defendants, Defendants are entitled to an award of $2,130.47.100

III. CONCLUSION

For the reasons set forth above, Plaintiff’s claim for specific performance is

denied. Judgment is entered in Defendants’ favor in the amount of $2,130.47. The

parties are directed to submit an implementing order.

100
Plaintiff’s reply brief does not engage with Defendants’ damages calculation; instead,
it simply suggests that “Defendant[s] have proven their calculations unreliable.” PRB at
15. Plaintiff arguably has waived any specific objection to Defendants’ calculation of
damages.

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