Opinion
C.A. No. 03C-06-014THG.
January 24, 2006.
Stephen P. Ellis, Esquire Sergovic Ellis, P.A. Georgetown, DE.
Bradley S. Eaby, Esquire Barros, McNamara, Malkiewicz Taylor Dover, DE.
Robert G. Gibbs, Esquire Wilson, Halbrook Bayard Georgetown, DE.
Dear Counsel:
This is the Court's decision as to Mr. Gibbs' motion for summary judgment, which was timely filed on December 29, 2005. The reply was due January 18, 2006, but nothing was filed opposing the motion for summary judgment. The motion for summary judgment is therefore granted as to its merits and as being unopposed.
Approximately six years ago, Plaintiffs sold a restaurant to Defendant Agrinio Ltd. Mr. Gibbs' client, Basile Efstathiou, personally guaranteed a note by Agrinio, Ltd., in favor of Plaintiffs.
Eventually, Agrinio, Ltd., defaulted. Plaintiffs took possession of the premises, changed the locks, and sold the collateral that was provided by Agrinio, Ltd., as security on the aforementioned note.
No notification was given to any defendant prior to the sale of the collateral. Apparently, Plaintiffs sold the property to a third party for $40,000.00; credited this sum against the note balance, and have sued for deficiency.
The failure to provide the note required by the Uniform Commercial Code, 6 Del.C. § 9-504 is fatal to Plaintiffs' attempt to seek a deficiency judgment. Friendly Finance Corporation v. Bovee, 702 A.2d 1225 (Del.Supr. 1997)
Therefore, summary judgment is entered in favor of Basile Efstathiou, and Plaintiffs' complaint as to Mr. Efstathiou is dismissed with costs assessed against the Plaintiffs. Alternately, summary judgment is entered as being unopposed since Plaintiffs did not respond to the motion.
IT IS SO ORDERED.