Schiavo v. TD Bank USA National Association

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHARLES SCHIAVO, ) ) Plaintiff, ) ) C.A. No. N24C-08-107 FWW v. ) ) TD BANK USA NATIONAL ) ASSOCIATION, ) ) Defendant. )

Submitted: June 11, 2025 Decided: July 28, 2025

Upon Defendant TD Bank USA National Association’s Motion to Dismiss Amended Complaint GRANTED

MEMORANDUM OPINION AND ORDER

Charles Schiavo, 829B Culbreath Street, Smyrna, DE 19977, Plaintiff, pro se. Mackenzie Wroble, Esquire; Michael B. Gonen, Esquire, DUANE MORRIS, LLP, 1201 North Market Street, Suite 501, Wilmington, DE 19801, attorneys for Defendant TD Bank, N.A. (incorrectly captioned TD Bank USA National Association).

WHARTON, J. I. INTRODUCTION

On February 19, 2025, this Court granted Defendant TD Bank USA National

Association’s (“TD Bank”) Motion to Dismiss Plaintiff Charles Schiavo’s

(“Schiavo”) Complaint in this case1 and his Complaint in a companion case, Charles

Schiavo v. Clover Network, LLC.2 Despite being brought separately, the original

complaints were based on the same set of operative facts. They alleged generally

that TD Bank, in concert with Clover Network, LLC (“Clover”), fraudulently

deprived him of a credit card payment in the amount of $10,175.00. 3 He sought

compensatory damages in the amount of $25,000.00 and punitive damages of

$150,000.00.4 After sifting through Schiavo’s unstructured Complaint, the Court

identified two possible causes of action – breach of contract and theft, but found that

Schiavo had failed to state a claim for either.5

Schiavo was granted leave to amend his Complaint, but with conditions.

Among those conditions were that: (1) any amended complaint must comply with

the pleading requirements of Superior Court Civil Rules 8(a), 9(b) (if fraud were

1 Schiavo v. TD Bank USA National Association, 2025 WL 551742 (Del. Super. Ct. Feb. 19, 2025). 2 Schiavo v. Clover Network, LLC, 2025 WL 551690 (Del. Super. Ct. Feb. 19, 2025, corrected Feb. 28, 2025). 3 Compl., D.I. 1. 4 Id. 5 Schiavo v. TD Bank, 2025 WL 551742, at *4. 2 alleged), 10 (especially 10(b)), and 15(aa); and (2) each claim must state all of the

elements necessary to allege each claim.6 Additionally, the Court permitted Schiavo,

if he chose, to join both Defendants in a single amended complaint.7 Finally, the

Court admonished Schiavo that it would strike any amended complaint that included

language personally attacking opposing counsel or the Court.8 This last warning was

necessary to dissuade Schiavo from continuing to submit intemperate, filings

attacking counsel and the Court.9

On May 1, 2025, Schiavo filed his 27-page Amended Complaint.10 Although

both Defendants are joined in a single Amended Complaint, Schiavo curiously

expresses his opposition to joinder.11 TD Bank again moves to dismiss under

Superior Court Civil Rules 12(b)(6) and 9(b).12 The motion contends that: (1) the

Amended Complaint raises no new allegations and the Court already determined the

allegations in the original Complaint failed to state a claim; (2) the Amended

6 Id. at *5. 7 Id. 8 Id. 9 Before he filed his Amended Complaint, the Court was forced to find Schiavo in civil contempt due to his persistent ad hominum attacks on both opposing counsel and the Court. Schiavo v. TD Bank USA National Association, LLC, 2025 WL 1088548 (Del. Super. Ct. Apr. 11, 2025). 10 Amend. Compl., D.I. 69. 11 Id. at ⁋ 2. Apparently, Schiavo misreads the Court’s language granting him permission to file a single amended complaint as the Court requiring him to do so. See, Id. 12 Def.’s Mot. to Dismiss, D.I. 72. 3 Complaint does not satisfy Superior Court Rules; and (3) the Amended Complaint

is contumacious.13

After carefully considering the parties contentions and the record, TD Bank’s

motion is GRANTED for three independent reasons. First, the Amended

Complaint, like its predecessor, fails to state a claim upon which relief can be

granted. Second, Schiavo’s Amended Complaint fails to follow this Court’s rules

and orders despite Schiavo being on notice of the consequences of such failure.

Third, it is contumacious. The Amended Complaint is DISMISSED WITH

PREJUDICE.

II. FACTS AND PROCEDURAL HISTORY

Schiavo initiated this action when he filed a Complaint against TD Bank in

August 2024.14 He preceded that Complaint with a separate one against Clover in

July based essentially on the same set of facts.15 Generally, his Complaint against

TD Bank set out the following: (1) Schiavo owns Jems Classic Autos (“Jems”);16

(2) Jems signed an estimate with Asplundh Engineering (“Asplundh”) to repair a

13 Id. 14 Compl., D.I. 1. 15 Compl., Schiavo v. Clover Network, LLC, N24C-07-1375 FWW, D.I. 1. 16 Compl. at ⁋ 5, D.I. 1. The paragraphs of the Complaint were not numbered. Counsel for TD Bank helpfully supplied numbers it its Motion to Dismiss, Def.’s Mot. to Dismiss, at Ex. A., D.I. 11. The Court adopts those paragraph numbers here. 4 2023 Ford F-150 turbo vehicle for approximately $29,000.00, less a 10% discount;17

(3) on May 26, 2024, Kevin Coin (“Coin”), a representative of Asplundh and

authorized user of its credit card, paid Jems $9,500.00 for repairs completed to

date;18 (4) the payment was made by credit card over the telephone with a Clover

representative guiding Schiavo and Coin through the process;19 (5) the payment was

credited to Jems’ account on May 28, 2024;20 (6) on June 1st, Coin made a second

payment of $9,500.00;21 (7) this payment also was made by credit card over the

telephone, but this time without the assistance of a Clover representative;22 (8) on

June 3rd, this second $9,500.00 payment was credited to Jem’s account;23 (9) on or

about June 16th, Coin made a third credit card payment of $10,175.00;24 (10) this

payment was never credited to Jems’ account “specifically due to what the Plaintiff

believes was fraudulent activity by TD Bank and Clover, hereafter the

coconspirators” according to the Complaint.25

17 Id. 18 Id. 19 Id.. 20 Id. 21 Id. at ⁋ 6. 22 Id. 23 Id. There is some confusion about the dates because ⁋ 6 reads, “On June 15th the second 9,500.00-dollar credit card payment was credited to the Jems bank account on 6-3-24, (Exhibit D).” 24 Id. at ⁋ 7. 25 Id. 5 Based on those facts and other allegations, Schiavo brought claims for fraud

and theft.26 On September 9, 2024, TD Bank moved to dismiss pursuant to Rules

9(b) and 12(b)(6).27 It argued that the Complaint failed to state a claim against it

and to particularize it fraud allegation.28 After briefing and oral argument jointly

with Schiavo’s suit against Clover, the Court dismissed the Complaint without

prejudice to Schiavo to file an amended complaint.29 But, because of the

unstructured nature of Schiavo’s Complaint, his disregard of pleading rules,

including paragraph numbering requirements and page limitations, and his

intemperate comments both in his pleadings and at oral argument, the Court imposed

conditions on the filing of an amended complaint. Those conditions were: (1) any

amended complaint must comply with the pleading requirements of Rules 8(a); 9(b)

(if fraud were alleged), 10 (especially 10(b)), and 15(aa); and (3) any amended

complaint that included language personally attacking opposing counsel or the Court

would be stricken.30

Schiavo filed his Amended Complaint on May 1, 2025.31 He availed himself

of the Court’s offer to allow him to file a single Amended Complaint against both

26 See, generally, Compl.., D.I. 1. 27 Def.’s Mot. to Dismiss, D.I. 11. 28 Id. at ⁋ 4. 29 Schiavo v. TD Bank USA National Association, 2025 WL 551742, at *5. 30 Id. 31 Amend. Compl., D.I. 69. 6 defendants, but, opposed joinder for trial.32 Before Schiavo filed his Amended

Complaint, however, the Court found it necessary to hold him in civil contempt as a

result of his contumacious language in several of his filings subsequent to the

Court’s decision dismissing his Complaint.33

The Amended Complaint improves upon the Complaint in at least one respect

– the paragraphs are numbered in compliance with Rule 10(b).34 Unfortunately, his

claims for relief are not “short and plain statement[s] of the claim[s]” showing his

entitlement to relief as required by Rule 8(a).35 Nor is each claim founded upon a

separate transaction or occurrence stated in a separate count as required by Rule

10(b).36 Finally, the Amended Complaint does not indicate how it differs from the

Complaint as required by Rule 15(aa).37

32 Id. at ⁋ 2. 33 Schiavo v TD Bank USA National Association, 2025 WL 1088548 (Del. Super. Ct. Apr. 11, 2025). 34 Super. Ct. Civ. R. 10(b). (“All averments of claim or defense shall be made in numbered paragraphs, the contents of which shall limited as far as practicable to a statement of a single set of circumstances…”). 35 Super. Ct. Civ. R. 8(a). 36 Super. Ct. Civ. R. 10(b). (“Each claim founded upon a separated transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.”). 37 Super. Ct Civ. R. 15(aa). (“A party serving an amended pleading shall indicate plainly in the amended pleading in what respect the amendment differs from the pleading which it amends.”). 7 Substantively, much of the Amended Complaint is given over to criticism of

opposing counsel and the Court’s decision dismissing his Complaint. In fact,

according to Schiavo, documentation obtained subsequent to the Complaint and

included in the Amended Complaint “doesn’t represent any new allegations unless

specifically articulated as such in this amended complaint.”38 The Amended

Complaint does raise a new claim of a violation of the Delaware Consumer Fraud

Act (“DCFA”).39 It adds more detail to his communications with Clover and TD

Bank and further expands on the circumstances related to the return of the

unsuccessful third payment of $10,175.00 to Asplundh’s Bank of America account.

TD Bank moved to dismiss the Amended Complaint on May 15th.40 Schiavo

submitted his Response on the 18th.41 TD Bank replied on June 11th.42 Schiavo then

filed a document captioned “Plaintiff Responds to the Attorney for TD Bank, June

15th Correspondence!”43 The document demands information from TD Bank and

reargues Schiavo’s position.44 There is no June 15th correspondence from TD Bank

on the Superior Court docket. He also docketed a document captioned “Plaintiff

38 Amend. Compl. at ⁋ 1 (emphasis in original), D.I. 69. 39 Id. at ⁋ 1. 40 Mot. to Dismiss Amend. Compl., D.I. 72. 41 Pl.’s Resp. D.I. 75. 42 Def.’s Reply, D.I. 76. 43 D.I. 78. 44 Id. 8 Responds to the Attorney for TD Bank, June 20th Correspondence!”45 Counsel for

TD Bank wrote the Court on June 20th enclosing courtesy copies of its Reply.46

Nothing in it required a response from Schiavo. Nevertheless, he took the

opportunity to attack TD Bank’s counsel and threaten him.47

III. THE PARTIES’ CONTENTIONS

TD Bank’s Motion to Dismiss the Amended Complaint makes three

arguments for dismissal under Rules 12(b)(6) and 9(b): (1) the Court already rejected

the accusations in the Amended Complaint;48 (2) the Amended Complaint does not

satisfy the rules;49 and (3) the Amended Complaint is contumacious.50

Schiavo’s Response requests “for brevity purposes” that the Court “include

all the information and Exhibits presented to the Supreme Court in the Plaintiff’s

appeal regarding Judge Farris [sic] W. Wharton’s ‘Contempt of Court’ conviction

of Plaintiff.”51 It references TD Bank’s Motion and attaches exhibits setting out

Schiavo’s arguments in opposition to each of TD Bank’s grounds for dismissal. The

body of the Response is primarily a reargument of the Court’s earlier decision

45 D.I. 79. 46 D.I. 77. 47 Id. 48 Def.’s Mot. to Dismiss Amend. Compl. at Sec. A, D.I. 72. 49 Id. at Sec B. 50 Id. at Sec. C. 51 Pl.’s Resp. at ⁋ 1, D.I. 75. 9 dismissing the Complaint with a reference to additional exhibits submitted after that

decision.

TD Bank’s brief Reply describes Schiavo’s Response as “a running

commentary on the Motion, for which he creatively attempts to avoid page limitation

by placing his arguments in self-drafted attachments which he purports to

incorporate by reference to the main document.”52 More substantively, it notes that

the Response does not join the issues and that failure to rebut issues amounts to a

concession of those issues.53

III. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim pursuant to Superior Court

Rule 12(b)(6) will not be granted if the “plaintiff may recover under any reasonably

conceivable set of circumstances susceptible of proof under the complaint.”54 The

Court's review is limited to the well-pled allegations in the complaint.55 In ruling on

a 12(b)(6) motion, the Court “must draw all reasonable factual inferences in favor

of the party opposing the motion.”56 Dismissal is warranted “only if it appears with

reasonable certainty that the plaintiff could not prove any set of facts that would

52 Def.’s Reply at ⁋ 2, D.I. 76. 53 Id. at ⁋⁋ 3,7. 54 Browne v. Robb, 583 A.2d 949, 950 (Del. 1990). 55 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005). 56 Id. 10 entitle him to relief.”57 However, the Court will “ignore conclusory allegations that

lack specific supporting factual allegations.”58 The Court may, “despite allegations

to the contrary,” dismiss a complaint “where the unambiguous language of

documents upon which the claims are based contradict the complaint’s

allegations.”59

V. DISCUSSION

A. Previously Adjudicated Allegations

Schiavo leads off his Amended Complaint by declaring:

There has been verifiable documentation obtained by Plaintiff after filing the original complaints, N24C-07-135 FWW, and N24C-08-107 FWW, which supports the accuracy of the claims made by the Plaintiff in his original complaint. This verifiable documentation obtained by Plaintiff doesn’t represent any new allegations unless specifically articulated as such in this amended complaint, but mostly supports Plaintiff’s original complaint which claimed 1) breach of contract, 2) fraud on the part of Clover and TD Bank, while condemning TD Bank’s outright theft of almost 11,000.00 dollars resulting from Clover ordering TD Bank to back charge the Plaintiff’s account, which is considered “unfair business practices” as defined by Delaware Code Title 6, Chapter 2511 Subtitled (II), “Commerce Fraud”. Therefore, the Plaintiff is filing an amended complaint providing additional documentation to the Court supporting all the

57 Id. 58 Ramunno v. Cawley, 705 A.2d 1029, 10345 (Del. 1998). 59 Tigani v. C.I.P. Assocs., LLC, 2020 WL 2037241, at v*2 (Del. Apr. 27, 2020) (citing Malpiede v. Townson, 780 A.2d 1075, 1083 Del. 2001). 11 original claims in the original complaint, while adding new defendants and documentation to support the new claims against these additional defendants.60

Despite his promise to add new defendants and new claims against the new

defendants, Schiavo has done neither. The Amended Complaint simply restates his

original claims, not in the form of a complaint, but rather as argument. In fact,

Schiavo acknowledges that the Amended Complaint is not designed to remedy the

defects in the original, but to “[s]upport the original claims advanced by the Plaintiff

in the original complaint 1) breach of contract 2) the claims of fraudulent actions by

the defendants…”61

Schiavo concedes that he does not raise any new claims or rework his original

allegations to set out the elements of the claims he purports to advance. Therefore,

the Court’s earlier determination that Schiavo’s own submission shows that the

disputed payment was not stolen by anyone, but returned to Asplundh, settles the

matter.62 The Amended Complaint, like its predecessor fails to state a claim upon

which relief may be granted.

60 Amend. Compl. at ⁋ 1. It appears that Schiavo’s allegation that TD Bank stole an additional $11,000.00 stems from him over drafting his account as a result of the third payment being returned to Asplundh. Compl. at Ex. G-2, D.I. 1. 60 Id. at ⁋ 5. 61 Id. at ⁋ 5. 62 Schiavo v. TD Bank USA National Association, 2025 WL 551742, at *4. 12 B. Failure to Comply with Rules.

In both its decision dismissing Schiavo’s Complaint and its Order finding him

in civil contempt, the Court expressly warned Schiavo that he must follow the

Superior Court Civil Rules if he chose to file an amended complaint. In particular,

he was directed to comply with the pleading requirements of Rules 8(a), 9(b) if he

alleged fraud, 10 (especially 10(b)), and 15(aa).63 It further admonished him to be

civil.64

In its Motion to Dismiss the Amended Complaint, TD Bank argues

alternatively that the Amended Complaint should be dismissed for Schiavo’s failure

to comply with the Court’s rules. Specifically, it faults the Amended Complaint for

not containing a clear statement of its claims, failure to set off and identify the claims

with specificity, and failure to include a demand for judgement, all in violation of

Rule 8(a).65 TD Bank further contends the Amended Complaint does not allege

fraud with the particularity required by Rule 9(b);66 does not limit its “prolix”

paragraphs to “a statement of a single set of circumstances” and state each legal claim

“in a separate count;”67 and makes no attempt to identify where the Amended

63 Id. at *5; Schiavo v. TD Bank USA National Association, 2025 WL 1088548, at *3. 64 Id. 65 Def.’s Mot. to Dismiss Amend. Compl. at ⁋ 8, D.I. 72. 66 Id. at ⁋ 9. 67 Id. at ⁋ 10. 13 Complaint differs from the original as required by Rule 15(aa).68 The Court treats

this request as a motion to dismiss under Rule 41(b) – “For failure of the plaintiff to

prosecute or to comply with these Rules, or any order of the Court, a defendant may

move for dismissal of an action, or any claim against the defendant.”69

In each instance, TD Bank is correct. It is obvious from the face of the

Amended Complaint that it does not comply with Rules 8(a), 10, and 15(aa). The

Amended Complaint levels most of its allegations of fraud against opposing counsel.

It does not comply with Rule 9(b) because it does not state “the time, place, and

contents of the false representations, as well as the identity of the person making the

misrepresentations as well as what he obtained thereby.”70 Ordinarily, the Court

gives considerable leeway to pro se litigants due to their unfamiliarity with the law

and rules of the Court. Here, however, Schiavo has been pointed to specific rules and

directed to follow them. The Rules bring order to the Court’s proceedings. Schiavo’s

persistent refusal to follow them, including employing the artifice in his Response of

placing his responsive arguments in exhibits to avoid page limitations,71 has had the

68 Id. at ⁋ 11. 69 Super. Ct. Civ. R. 41 (emphasis added). 70 Super. Ct. Civ. R. 9(b). 71 Super. Ct. Civ. R. 78(b). (“Responses in opposition to any motion …shall not exceed six pages in length…”). 14 opposite effect. He was warned of the consequences of litigating the case by

“Schiavo’s Rules” and now he must face the consequence of dismissal.

C. The Amended Complaint is Contumacious

Because the Court imposes the maximum sanction of dismissal, it is useful to

set out a sufficient enough portion of the record to capture the magnitude of Schiavo’s

transgressions against the Court and opposing counsel. The Court has had to chastise

Schiavo on multiple occasions for his continuous misbehavior throughout this

litigation. The first occasion was after Schiavo filed motions to strike72 and to

sanction opposing counsel73 following argument on TD Bank’s initial motion to

dismiss. On December 18, 2024, the Court entered an order striking both motions.74

The Court held that, to the extent the motions “accuse[d] counsel of misconduct, the

Court found them impertinent and scandalous.”75 It explained that:

[w]hile the Court grants considerable leeway to pro se litigants such as Mr. Schiavo, it does not grant them license to make intemperate and defamatory accusations against opposing counsel. Contrary to Mr. Schiavo’s apparent belief, as demonstrated in these and prior filings, every disagreement with opposing counsel, even where he believes them to be factually incorrect, is not an opportunity for him to accuse them of dishonesty and professional misconduct. The Court admonishes Mr.

72 D.I. 19 73 D.I. 20. 74 D.I. 28. 75 Id. at 2. 15 Schiavo to temper the language of any future filings. Failure to do so runs the risk of the Court imposing appropriate sanctions against him.76

Two days later, the Court admonished Schiavo again. In an Order dated

December 20, 2024, the Court struck Schiavo’s motions to amend his complaints

in both actions which were filed before he received the Court’s December 18 th

Order.77 It did so because they “[n]ot only repeat[ed] Mr. Schiavo’s ad hominum

attacks on opposing counsel, but they broaden[ed] the scope of his vituperative to

include the Court.” The Court also warned him that the Court will not consider any

further filings “that include ad hominum attacks on anyone, including opposing

counsel and the Court.”78 It also noted that even if the motions to amend were not

stricken, they would be denied because they did not conform to Rule 15(aa).79

Schiavo next induced Frank Cascino, Vice President – Manager of Asplundh

Engineering Services to write the Court.80 Schiavo did so on the false representation

to Mr. Cascino that “the TD Bank/Clover lawyers have accused [Mr. Cascino] of

being involved in money laundering with [Schiavo].”81 The tone of the letter was

76 Id. at 2-3 (emphasis added). 77 D.I. 29, at 1-2. 78 Id. at 2. 79 Id. 80 D.I. 30. 81 Id. at 1. 16 justifiably indignant – Mr. Cascino was “outraged and angry that TD Bank/Clover

lawyers [had] accused Jems and myself of money laundering with no evidence … I

am not a litigious person but I am so incensed that I am considering legal action

against TD Bank/Clover.”82 When asked at the civil contempt hearing to identify

where counsel had made that accusation, after a pause of more than five minutes,

Schiavo identified a comment at page 15, line 9 of the transcript of argument on the

Defendants’ motions to dismiss the Complaint. That comment was made by neither

counsel for Clover, nor TD Bank. Instead, the Court, addressing counsel for TD

Bank said:

Well, you know, I am sort of curious here, because it seems from reading things that this … although you alluded to sort of a suspicious transaction, and, you know, I understand that you have these dollar amounts in the $10,000 range, roughly, occurring close together , that there can be structuring considerations.83

In fact, counsel for TD Bank said, addressing that same issue:

…but I would note Mr. Schiavo’s own allegations are that with a new customer, with whom it did not have a prior course of dealing, he has multiple transactions just under $10,000in close proximity, which, if you don’t know anything about those transactions, could look like structured transactions designed to evade reporting requirement.

82 Id. at 2. 83 Hr’g. Tr. (Dec. 9, 2024) at 15:9-16, D.I. 32. 17 There is nothing untoward about such transactions, but it is also nothing that is reasonable conceivable that could be wrong about asking additional questions about them.84

Schiavo’s false accusations have not only unfairly maligned opposing counsel in the

eyes of a non-party, but also exposed them and their clients to potential litigation.

Mr. Schiavo communicated with Jason Blusk, docketing a letter to him on

February 10, 2025 that Schiavo wrote on February 4th.85 Mr. Blusk is identified in

the letter as “VP Operations Manager Merchant Solutions.”86 Mr. Blusk works for

TD Bank.87 In the letter, Schiavo demands that TD Bank “remit all money that was

stolen from my bank account, Jems Classic Autos, which would include thew cash in

the Jems Classic Autos account at the time my account was fraudulently back charged

by TD Bank for the 10,175 dollars failed credit card payment I should have received

from my customer Asplundh Engineering.” He also threatens to take action with the

F.B.I. and the Comptroller of the Currency whom he copies on his letter. Contacting

an employee of a represented party directly threatening criminal action in order to

gain an advantage in a civil action would not be looked upon favorably if Schiavo

were an attorney.

84 Id. at 7:11-8:1. 85 D.I. 33. 86 Id. 87 Id. 18 Schiavo docketed another letter – this one to the Court – on February 10th. In

that letter he described meeting with the FBI, the Comptroller of the Currency, and

the State of Delaware Bank Commissioner.88 He described a comment by the Court

at oral argument that “It sounds like Mr. Schiavo’s dispute is not with TD Bank but

Asplundh Engineering” as representing:

an extremely dangerous distorted understanding of reality, which everyone 1) the FBI, 2) the Office of the Comptroller of the Currency, 3) the ladies from the Delaware State Banking Commissioner’s Office have confirmed that your ignorance of the facts on the case after six months should be considered intolerable.89

In commenting on oral argument, he wrote, “Trust me, it was everything I could do

watching you pompous blowhards ack [sic] like you were better than me while I was

the one telling the truth and you Judge Farris [sic] W. Wharton and the attorneys for

TD Bank and Clover were lying and placating each other, it was despicable,

hypocritical and completely unprofessional.”90 He closed by citing Scripture:

Therefore, it is important to realize the hypocrisy displayed in your dismissal of my motion to strike the lies advanced by the attorneys for TD Bank and Clover, the Bible addresses your actions specifically, “Woe to those who call evil good and good evil.” Isaiah 5:20, this Bible verse highlights a significant ethical concern that has been relevant throughout history, particularly in the Delaware

88 D.I. 34. 89 Id. 90 Id. 19 Court system. This verse warns against the tendency of individuals or societies to mislabel actions, behaviors, or ideologies that are inherently wrong (evil) as acceptable or (good) and vice versa. Therefore, Judge Farris [sic] W. Wharton when you denied my motion to strike the lies (evil) advanced by the attorneys for TD Bank and Clover you were calling evil good and my truth evil, this type of bigoted understanding of reality cannot be tolerated in a courtroom, consequently I am requesting you to recuse yourself so that I can maybe get a fair trial assuming I can get passed [sic] the next hurdle which is getting a trial by jury.91

In response the Court granted Schiavo permission to file a motion asking the Court

to recuse itself. But it reminded him that his motion “must not go beyond the bounds

of civility to which the Court holds all litigants, including pro se litigants” and

“[f]ailure to adhere to the bounds of propriety will result in the same fate as his

prior impertinent filings.”92 No such motion was filed.

Schiavo filed another letter with the Prothonotary on February 13, 2025.93 In

it he complains about a letter he received from non-party Radius Global Solution,

LLC alleging that he owed TD Bank $10,175.00. He states that he is “talking to the

FBI about filing criminal complaints against everyone involved in this chicanery

[presumably including the Court].”94

91 Id. 92 Id. (emphasis added). 93 D.I. 36. 94 Id. 20 On February 19, the Court issued its decision dismissing Schiavo’s Complaint

against Clover without prejudice.95 Leave was granted to file an amended complaint

on the following conditions:

1. Any Amended Complaint shall comply with the pleading requirements of Superior Court Civil Rules 8(a), 9(b) (if fraud is alleged), and 10 (especially 10(b)); 2. Each claim shall state all of the elements necessary to allege such claim or risk dismissal with prejudice upon appropriate motion; 3. Such Amended Complaint may join Clover Network, LLC and TD Bank USA National Association as well as any other prospective defendant in a single Amended Complaint either under this case, or under Schiavo v. Clover Network, LLC, C.A. No. N24C-07-135 FWW; and 4. The Court will strike any Amended Complaint that includes language personally attacking opposing counsel or the Court.96

Thus, the ground rules were clearly established for any amended complaint Schiavo

wished to file.

Schiavo did not take the dismissal well. His first letter, dated February 20th,

addressed to the Court, included, inter alia, requests for permission to file a

reargument motion and to request an evidentiary hearing.97 His requests were

95 Schiavo v. Clover Network, LLC, 2025 WL 551690 (Del. Super. Ct. Feb. 19, 2025). 96 Id. at *5. 97 D.I. 39. 21 accompanied by a threat to “contact the U. S. Attorney’s Office to file an official

complaints against you and the attorneys for TD Bank and Clover’ if his requests

were not granted.98 After an exegesis on judicial ethics, he wrote:

before I take legal actions against you for violating court rules and your extreme bias towards me, and against the attorneys for Clover and TD Bank, along with the collection agency TD Bank employed to defraud me out of almost 11,000 dollar, I’m requesting you grant me leave to file a motion to reconsider your dismissal of my original complaints…99

He also challenged the accuracy of the transcript of oral argument – “after reading

the same it appears the transcripts of the oral argument have been altered and are by

no means complete.”100 He continued:

Judge Farris [sic] W. Wharton, if I’m correct and the transcripts of the oral argument have been altered, this altering of the transcript of the oral argument will also become a topic of conversation I will be presenting to the Delaware Judicial Ethics Advisory Committee and the Commission on Judicial Conduct along with the State Attorney General’s office sometime next week if I have to go to war to protect my constitutional rights of due process.101

98 Id. 99 Id. 100 Id. (emphasis in original). 101 Id. 22 He then selected 23 portions of the oral argument transcript to critique the Court in

disparaging fashion. To cite only one example:

2) Judge Farris [sic] W. Wharton, on page 9 of the transcripts of the oral argument, I Charles Schiavo simply said I didn’t hear that last comment, and instead of politely stating to the attorney for TD Bank please repeat your last statement, you Judge Farris [sic] W. Wharton went berserk starting at page 9 lines 10-23 and lasting to page 10, lines 1-16, you started acting like a crazy person, demeaning me for simply saying I didn’t hear the last statemen; this type of egotistical demeanor can only come from someone that holds an unhealthy hatred for someone or is a complete bigot, holding a god-like attitude towards anyone not on their professional level, because they don’t wear a black robe. Trust me, it was disgusting to endure and completely uncalled for, treating people with respect is essential if you expect to get respect in return.102 Judge Farris [sic] W. Wharton the next time we meet I expect an apology for your unprofessional and intolerable behavior displayed during oral argument and I’m sure the Delaware Judicial Ethics Advisory Committee and the Commission on Judicial Conduct along with the Attorney [sic] General Office will whole heartedly agree.103

102 The irony here is not lost on the Court. 103 D.I. 39. The cited section of transcript reads:

MR. SCHIAVO: I didn’t hear that last comment.

THE COURT: Mr. Schiavo, you don’t talk to opposing counsel, you talk to me. Okay?

MR. SCHIAVO: I’m sorry You Honor. I just didn’t understand.

THE COURT: When you talk, you stand.

23 Schiavo’s letter continued in that vein. On February 26th, the Court granted his

request to file a reargument motion104 with the caveat that it must be filed within five

days and comply with Rule 78(b)’s page limitations.105 It denied his request for an

evidentiary hearing.106 It was not until March 7th that Schiavo filed his reargument

MR. SCHIAVO: Got it.

THE COURT: These are rule, ground rules of the Court.

MR. SCHIAVO: I understand.

THE COURT: So I understand what you are trying to say is you didn’t hear his last comment.

MR. SCHIAVO: That’s correct.

THE COURT: Okay? It comes through me, not directly to him.

MR. SCHIAVO: I apologize.

THE COURT: All right. Fair enough. Apparently Mr. Schiavo didn’t hear what you said. Go back to going into a Rule 56 motion. Hr’g. Tr. at 9:10-10:16 (Dec. 4, 2024), D.I. 32.

104 The Court had never required Schiavo to seek leave to file such a motion. 105 D.I. 40. 106 Id. 24 motion.107 The motion was denied because it was untimely and because it simply

rehashed what Schiavo had argued previously.108

Instead of filing an amended complaint, Schiavo wrote the Court on March

20th109 and again on the 21st.110 The March 20th letter repeated arguments about the

third credit card payment and included this comment:

…it became apparent that you never really grasped the salient points of the complaint evidenced by your irrational claims that my complaint should have been filed against Asplundh Engineering, which is completely insane. Judge no one possessing any cognitive reasoning power whatsoever could make such an uneducated, and completely contradictory comment that my claim should be against Asplundh Engineering unless they are cognitively disabled, a complete bigot, or they are being bribed by TD Bank and/or Clover.111

Schiavo also asked for an additional two weeks to file his amended complaint.112

The March 21st letter, captioned “Regarding: Pissed off!,” reargued the Court’s order

dismissing Schiavo’s Complaint yet again.113 That letter expressed his feelings

about the Court – “I am questioning your integrity, no one in possession of their

107 D.I. 43. 108 D.I. 44. 109 D.I. 48. 110 D.I. 49. 111 D.I. 48. 112 Id. 113 D.I. 49. 25 cognitive skills or is not on the take can perform their job as poorly as you have over

the last six months” and “’I’m perfectly convinced these proceedings are a scam, no

judge can do his job as poorly as you have without being on the take.”114 This letter

also asked for an additional two weeks to file an amended complaint and for

permission to add defendants.115

It was at this point where the Court’s patience with Schiavo ended and it

determined to address Schiavo’s conduct. Citing his March 20th letter and the

numerous instances where the Court had admonished him to abstain from

intemperate filings and to avoid ad hominum attacks on opposing counsel and the

Court, on March 24th the Court issued an Order pursuant to Rule 64.1 for Schiavo to

appear before the Court and show cause why he should not be held in civil contempt

for the language of his March 20th letter in violation of the Court’s Orders regarding

intemperate language.116

Prior to the Rule 64.1 hearing on April 11th, the Court received a letter from

Schiavo.117 In that letter he objected to the Court presiding at the hearing and

demanded a jury trial.118 He also says that he has “contacted several psychiatrists in

114 Id. 115 Id. 116 D.I. 51. 117 D.I. 67. 118 Id. 26 the State of Delaware, without referencing any names, I requested, to have you

analyzed to determine if you are suffering from cognitive issues, or if you are a

complete bigot, meaning you hate every pro se litigant or possible accepting a bribe

from the defendants.”119 He requested that the Court provide a letter immunizing

any such psychiatrist from retaliation.120

On April 11th, the Court held a hearing pursuant to Rule 64.1 where Schiavo

had the opportunity to show cause why the Court should not find him in civil

contempt. At that hearing, Schiavo acknowledged notice of the Court’s Orders

directing him to refrain from using uncivil language in his filings.121 However, when

given the opportunity to show cause why he should not be held in civil contempt, he

was unrepentant, insisting on the truth of his allegations about counsel and the Court

while attempting to relitigate the merits of his case.122 The Court found Schiavo in

civil contempt and required him to pay a sum of $1,000.00 in each case in order to

insure that any amended complaint: (1) complied with the pleading requirements of

Superior Court Civil Rules 8(a), 9(b) (if fraud were alleged), 10 (especially 10(b))

and 15(aa); (2) that each claim was stated in separate counts, i.e. theft, fraud, breach

119 Id. (emphasis in original). 120 Id. 121 Schiavo v. TD Bank USA National Association, 2025 WL 1088548 (Del. Super. Ct. Apr.11, 2025). 122 Id. at *2. 27 of contract, etc., and stated all of the elements necessary to allege such claim or risk

dismissal with prejudice upon appropriate motion.123 The Court warned Schiavo

that it would strike any amended complaint that included language personally

attacking opposing counsel or the Court.124 It advised him that the sanction was not

intended to be punitive. Rather, it was intended to cause him to amend his behavior

and comply with this Court’s expectations regarding civility towards opposing

counsel and the Court in any future filings.125

Schiavo paid the required sums and filed his Amended Complaint on May

5th.126 Despite being warned repeatedly to comply with specific rules of pleading,

the Amended Complaint fails as discussed above. The Amended Complaint

continues Schiavo’s assault on opposing counsel and the Court. In Paragraph 3 he

writes, “[H]owever, the Court has discarded the truth established by hard evidence

while believing in the unfounded allegations by the attorneys for Clover and TD

Bank, which is a clear violation of Delaware Superior Court Rules. (See Exhibit

Titled Delaware Superior Court Rules).”127 The Rules to which Schiavo cites in

the exhibit are Delaware Lawyers’ Rules of Professional Conduct Rules 3.3: Candor

123 Id. at *3. 124 Id. 125 Id. 126 Amend. Compl., D.I. 69. 127 Id. at ⁋ 3 (emphasis in original). 28 Toward the Tribunal and 8.4: Misconduct, and Superior Court Civil Rule 11: Signing

Pleadings, Motions, and Other Papers: Sanctions.128 The exhibit also includes a

section captioned “Penalties for Lying to the Court.129 For good measure Schiavo

adds sections on: (1) Judicial Ethics and Behavior, citing Delaware Code of Judicial

Conduct Canon 2(A) regarding impropriety and the appearance of impropriety; (2)

Criminal Behavior, citing Obstruction of Justice and Misconduct in Office ; and (3)

Violations of Court Rules.130 Similarly, in Paragraph 5.6 he writes, that in order for

the Court to have dismissed his Complaint it had to:

completely rely on the unfounded allegations made by the attorneys for TD Bank and Clover as exculpatory evidence with absolutely no documentation[s] to support their claims, (Zero) which must call into question the integrity of Judge Farris [sic] W. Wharton in the minds of everyone involved in these proceedings, including the Plaintiff…”131

He continues in Paragraph 6:

Therefore, the Court, relying upon the erroneous and fabricated allegations advanced by the defense attorneys during these entire proceedings and oral argument, has/ violated the Plaintiff’s constitutional rights of due process, which must result, if it continues in complaints being filed specifically against the attorneys for Clover and TD Bank, their respective law firms and the State of Delaware due to

128 Id. at Exhibit Titled Delaware Superior Court Rules. 129 Id. 130 Id. 131 Id. at ⁋ 5.6 (emphasis in original). 29 the actions of Judge Farris [sic] W. Wharton during these entire proceedings.132

He writes in Paragraph 7, “for the Judge Farris [sic] W. Wharton to believe

otherwise must bring into question his integrity.”133 And, in Paragraph 8, “Therefore,

the above illogical and completely in accurate [sic] conclusion, made by Judge Farris

[sic] W. Wharton, stands at the foundation of the reasons why the Plaintiff called

into question the integrity of the attorneys…”134 He concludes the Amended

Complaint with the threat that:

if this Chicanery continues, the Plaintiff is going to file a complaint against the attorneys for TD Bank and Clover inclusive of their respective law firms for patently misrepresenting the facts to the Court and the Plaintiff will be forced to bring Judge Farris [sic] W. Wharton in front of a discipline committee…135

These citations a merely examples. Virtually the entire Amended Complaint

is a frontal attack on opposing counsel and the Court.136 If that were not enough,

132 Id. at ⁋ 6. 133 Id. at ⁋ 7. 134 Id. at ⁋ 8. 135 Id. Conclusion at 26. 136 Examples of his attacks on Clover’s counsel are set out in the Court’s Memorandum Opinion dismissing his Amended Complaint against Clover. Schiavo v. Clover Network, LLC, 2025 WL ____ (Del. Super. Ct. Jul. 28, 2025) Needless to say a complaint should contain comments critical of counsel only in the rarest of circumstances, if ever. 30 Schiavo attaches exhibits repeating comments for which he was held in civil

contempt.137

Schiavo’s Response to TD Bank’s Motion to Dismiss, if anything, is even

worse. In the body of the Response, in Paragraph 4, he refers to the

“misrepresentations of facts” by the attorneys for TD Bank and Clover.138 Paragraph

5 refers to the “erroneous allegations advanced by the defense counsel” and the

“erroneous information advanced by the TD Bank attorney.”139 And in Paragraph

10 he refers to TD Bank’s attorney’s argument concerning Schiavo’s failure to

follow the rules of pleading as, “this ridiculous rant” and suggests that counsel “stop

egregiously violating the Superior Court Rules that can get you disbarred from

practicing law.”140

Schiavo reserves his harshest comments about counsel and the Court for his

exhibits. The first exhibit purporting to address the substance of TD Bank’s Motion

refers to Paragraphs 1-3 of the Motion.141 It consists primarily of an attack on the

137 Amend. Compl. Exhibit Titled Motion to Strike, at 5 (“Judge Farris [sic] W. Wharton is either mentally incognizant [sic] or a complete bigot…”); Exhibit Titled Letter Addressed to Judge Farris [sic] W. Wharton Titled “Pissed Off,” D.I. 69. 138 Pl.’s Resp. at ⁋ 4, D.I. 75. 139 Id. at ⁋ 5. 140 Id. at ⁋ 10. 141 Id. at Exhibit Titled Answers to Paragraphs One Through Three. 31 truthfulness of TD Bank’s attorney.142 The exhibit purporting to address Paragraph

9 regarding fraud includes these comments, “My comment is directed at [counsel for

TD Bank], look genius, TD Bank obtained the free use of my 10,175 dollars for six

months…” and “…it’s almost impossible to respond without making some type of

defaming remark. OK Einstein…”143 In response to Paragraph 12 concerning

Schiavo’s failure to adhere to the rules of pleading, he responds, “Are you kidding

me about this? The only reason my original complaint was dismissed for failure to

make a claim was that the attorneys for TD Bank and Clover were misrepresenting

the real facts to the court…”144 In response to Paragraphs 13 and 14 regarding

personal attacks, Schiavo insists that the Amended Complaint contains no personal

attacks.145 In response to Paragraph 15 regarding TD Banks’s contention that

Schiavo has continued his personal attacks, he says, “…are you kidding me, personal

attacks would not be necessary if everyone involved with these proceedings

followed Superior Court Rules and obey [sic] the law.”146 In response to Paragraph

16 also relating to personal attacks, Schiavo writes, “…this is what the Plaintiff feels

[TD Bank’s attorney] should be desperately concerned about if he wants to continue

142 Id. 143 Id. at Exhibit Titled Explanations on Paragraph Nine. 64 Id. at Exhibit Titled Explanations of Paragraph Twelve. 145 Id. at The Explanations of Paragraphs Thirteen and Fourteen. 146 Id. at The Explanations of Paragraph Fifteen. 32 maintaining freedom!”147 Finally, in response to Paragraph 17, regarding TD Bank’s

argument that Schiavo flagrantly disregarded the rules, he writes, “Conversely, what

this very confused attorney should be most concerned with is his constant

misrepresentations of the real facts to Judge Farris [sic] W. Wharton, which is going

to cost him his license to practice law.”148

For nearly a year now, Schiavo persistently has failed to abide by the Court’s

orders, both in terms of civility and rules of procedure. The Court has no expectation

that he would amend his behavior going forward if he were permitted to do so. Such

an expectation would be a fool’s errand upon which the Court will not embark. The

Court will not subject counsel to Schiavo’s vituperative should they be required to

engage with him personally or to attend unchaperoned depositions if the Court

allowed this case to go forward. There is no reason to believe Schiavo would honor

the rules of evidence at a trial any more that he has honored the rules of civil

procedure thus far.

Schiavo either is unable or unwilling to abide by the Court’s rules and its

expectations of civility. The Court will countenance Schiavo’s contumacious

behavior no longer. It must end and it does now.

147 Id. at Exhibit Explanations Titled Explanations of Paragraph Sixteen. 148 Id. at Exhibit Titled: Explanations Titled Explanations of Paragraph Seventeen. 33 VI. CONCLUSION

THEREFORE, for the reasons explained above, Defendant TD Bank USA

National Association’s Motion to Dismiss the Amended Complaint is GRANTED.

The Amended Complaint is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

/s/ Ferris W. Wharton Ferris W. Wharton, J.