City of Wilmington v. Kostyshyn.

Superior Court of Delaware·Decided October 16, 2015·No. N13J-01724·Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

THE CITY OF WILMINGTON, ) a municipal corporation of the ) State of Delaware, ) Plaintiff, ) ) v. ) ) C.A. No. 13J-01724 PETER T. KOSTYSHYN, JOHN J. ) KOSTYSHYN, PATRICIA R. ) KOSTYSHYN, MIROSLAW ) KOSTYSHYN AND TAX PARCEL NOS. ) 26-034.20-051 & 26-034.20-050, ) Defendants. )

Upon Defendants’ Motion for Reargument DENIED

Upon Defendants’ Request for Appointment of Counsel DENIED

Upon Order of the Commissioner dated August 13, 2015 AFFIRMED

This matter is before the Court upon Defendants’ Motion for Reargument and

Request for Appointment of Counsel filed on or about August 20, 2015 (“Motion”), and

the response of the City of Wilmington in opposition to the Motion. This Order also

addresses the Commissioner’s report dated August 13, 2105 on the merits. The Court

has considered the Superior Court Rules of Civil Procedure; the facts, arguments, and

legal authorities set forth in the Motion and opposition; statutory and decisional law;

and the entire record in this case. The Court finds as follows:

1. Plaintiff filed a Writ of Monition pursuant to Wilmington City Code § 4-181 on

January 8, 2015. The monition is based on unpaid taxes, water and sewer charges, and

vacant registration fees for the properties located at 1129 and 1131 West 4th Street,

Wilmington, DE 19804. The properties are contiguous and were thus part of one

monition action.

2. The sheriff sale was initially scheduled for April 14, 2015, but was rescheduled to

May 12, 2015. On April 12, 2015 and May 7, 2015, Peter Kostyshyn and Patricia

Kostyshyn respectively filed Chapter 13 bankruptcy petitions in the United States

Bankruptcy Court for the District of Delaware (“Bankruptcy Court”). The Bankruptcy

Court, on or about May 19, 2015, dismissed both bankruptcy cases, with prejudice, and

prohibited Patricia and Peter Kostyshyn from filing any further bankruptcy cases for

one and two years, respectively. In addition, the Bankruptcy Court issued orders

authorizing the sheriff sale to proceed pursuant to applicable state law.

3. The initial redemption period (upon confirmation by the Superior Court) occurred

on June 19, 2015. The final redemption period, pursuant to 9 Del. C. § 8729, expired

on August 18, 2015.

4. On or about August 7, 2015, the Defendants filed in this Court a Motion for

Injunction And/ Or Extension of Time for Final Redemption which sought (a) to

compel the Sheriff of New Castle County to accept funds to redeem only the property

2 located at 1131 West 4th Street, Wilmington, DE and (b) to extend the final redemption

period. On August 13, 2015, Commissioner Bradley V. Manning issued an Order,

which granted the Defendants’ first request, 1 but denied the Defendants’ request for an

extension of the August 18, 2015 final redemption deadline for lack of good cause

shown. Specifically, decretal paragraph 4 of the Order provides “[w]ant of funds for

Redemption does not constitute ‘good cause’—to hold otherwise would allow

interminable delay allowing owners to seek multiple continuances while the funds

necessary for Redemption were scraped together.”

5. Under Superior Court Civil Rule 132, Superior Court commissioners have the

power to conduct both dispositive and non-dispositive hearings and to make certain

pre-trial determinations and recommendations. 2 The fundamental nature of the subject

matter under review—dispositive or non-dispositive—dictates the degree of deference

a judge must give to such a determination. 3 Upon review of a commissioner’s case-

dispositive determination, a judge engages in a de novo review. 4 For such case-

dispositive determinations, therefore, a commissioner’s disposition acts as proposed

findings of fact and recommendations and the judge makes a de novo determination of

1 Paragraph 2 of the Order permitted the Defendants to redeem 1131 West 4th Street for $43,874.31 or 1129 West 4th Street for $35,317.43. 2 Super. Ct. Civ. R. 132(a)(3), (4); New Castle County v. Kostyshyn, 2014 WL 1347745, at *3 (Del. Super. Ct. April 4, 2014). 3 Kostyshyn, 2014 WL 1347745, at *3. 4 Super. Ct. Civ. R. 132(a)(4)(iv). 3 those specified portions, proposed findings of fact, or recommendations to which an

objection is made. 5

6. On or about August 20, 2015, Defendants filed the Motion which is the subject of

this Order. Though substantially unintelligible, the Motion appears to request

reconsideration of Commissioner Manning’s Order denying Defendants’ request for an

extension of the redemption period.

7. Rule 132(a)(iv) states that “[a] judge may reconsider any hearing or pretrial matter

under subparagraph (3) only where it has been shown on the record that the

Commissioner’s order is based upon findings of fact that are clearly erroneous, or is

contrary to law, or is an abuse of discretion.” Furthermore, the purpose of a motion for

reargument is to afford the trial court an opportunity to correct errors prior to appeal. 6

Reargument should be denied unless the Court has overlooked a controlling precedent

or legal principle or has misapprehended the law or facts such as would affect the

outcome of the decision.7

8. In their Motion, Defendants do not cite any legal principles overlooked by

Commissioner Manning or any law or facts misapprehended by the Commissioner

which would have affected his ruling. Reargument should be denied unless the Court

has overlooked a controlling precedent or legal principle or has misapprehended the

5 Id.; Kostyshyn, 2014 WL 1347745, at *3. 6 Kovach v. Brandywine Innkeepers Ltd., 2001 WL 1198944, at *1 (Del. Super. Ct. Oct. 1, 2001). 7 Ramon v. Ramon, 963 A.2d 128, 136 (Del. 2008); Maravilla-Diego v. MBM Constr. II, LLC, 2015 WL 5055955, at *1 (Del. Super. Ct. Aug. 27, 2015); Kovach, 2001 WL 1198944, at *1. 4 law or facts such as would affect the outcome of the decision. 8 Reargument is proper

only when facts previously submitted to the Court were misapplied in the legal

analysis forming the basis of the Court’s decision. To the extent the facts presented by

Defendants were previously raised in this matter, Defendants fail to discuss how the

Court misapprehended such facts in a manner ultimately affecting the Commissioner’s

ruling.

9. Furthermore, the Commissioner’s denial of the redemption deadline was a

reasonable and proper application of the facts and the law, and was well within the

Court’s authority and discretion. Pursuant to Wilmington City Code § 4-148, the

Court “may for good cause shown extend the time within which the property may be

redeemed.” The City Code is silent as to what constitutes “good cause” to extend the

redemption deadline and there is no controlling precedent to provide guidance. In

similar contexts, however, courts have held that a statutory redemption period should

only be extended under very limited circumstances such as “fraud, mistake, accident or

erroneous conduct on the part of the foreclosing officer.”9 Lack of available funds is

not a sufficient basis to extend the deadline. 10 Here, the Defendants have not alleged

any wrongdoing on the part of the City or otherwise articulated any exceptional

circumstance that would warrant an extension of the redemption deadline. Simply 8 See supra n. 7. 9 In re 210 Roebling, LLC, 336 B.R. 172, 176 (Bankr. E.D.N.Y. 2005) (internal citations omitted).

Free access — add to your briefcase to read the full text and ask questions with AI