IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

M&T BANK, )

)

Plaintiff ) 

)

v. )

 )

MARK T. GUTHRIE, JR., ) N19C-07-179 FWW

 )

Defendant, Third-Party Plaintiff )

 )

 v. )

 ) 

JOHN BROOKS, )

 )

 Third-Party Defendant. )

 ) 

Submitted: January 31, 2020

Decided: April 24, 2020

Upon Plaintiff M&T Bank’s Motion for Summary Judgment

GRANTED, in part, and DENIED, in part.

John E. Tarburton, Esquire, Orlans P.C., 512 East Market Street, Georgetown, 

Delaware 19947; Attorney for Plaintiff M&T Bank. 

Elwood T. Eveland, Jr., Esquire, Eveland Law Firm, 715 King Street, Suite 200, 

Wilmington, DE, 19801; Attorney for Defendant Mark T. Guthrie. 

WHARTON, J. 
2

I. INTRODUCTION 

Plaintiff M&T Bank (“M&T Bank”) brings this breach of contract and debt 

collection action against Defendant Mark T. Guthrie (“Guthrie”) for what it alleges 

is an outstanding amount due under an installment contract and security agreement 

(“Agreement”) for the purchase of a motor vehicle. Before the Court is M&T Bank’s 

Motion for Summary Judgment (the “Motion”). This is the Court’s decision on the 

Motion.

The Motion seeks an order that Guthrie is in default under the Agreement and 

M&T Bank is entitled to damages in a sum certain. Here, however, the issues of 

breach and damages must be considered separately. It is clear that Guthrie breached 

the agreement in a variety of ways, but because the record must be developed further 

concerning whether the sale of the vehicle was commercially reasonable under 

Hicklin v. Onyx Acceptance Corp.,

1 M&T Bank’s request for a full determination as 

to breach and damages in this Motion can be granted only in part. Accordingly, 

M&T Bank’s Motion for Summary Judgment is GRANTED on the issue of breach 

of contract, but is DENIED as to damages. 

 

1 Hicklin v. Onyx Acceptance Corp., 970 A.2d 244 (Del. 2009). Guthrie’s Answer 

to M&T Bank’s Complaint asserts affirmative defenses concerning commercial 

reasonableness and mitigation of damages. 
3

II. FACTUAL AND PROCEDURAL CONTEXT

In April 2017, M&T Bank entered into an Agreement whereby M&T Bank 

provided Guthrie with a loan in the original principal amount of $29,953.00 for the 

purchase of a 2017 Chevrolet Malibu (the “Vehicle”).2 In return, Guthrie granted 

M&T Bank a security interest in the vehicle as collateral for the loan,3agreed to pay 

M&T Bank “[i]f the vehicle is damaged, destroyed, or missing,”

4

agreed that M&T 

Bank could accelerate the loan should Guthrie fail to make his payments,5and agreed 

that he would insure the vehicle.6

According to Guthrie, he only signed the Agreement to assist his cousin John 

Brooks (“Brooks”) because Brooks “was down on his luck, and had no credit, and 

needed transportation to get back on his feet.”7 Guthrie purchased the vehicle and 

gave it to Brooks,8 however Guthrie required Brooks to make the installment 

 

2 Pl.’s Compl. at ¶ 3, D.I. 1; see also Def.’s Ans. at ¶ 3, D.I. 8. 

3 Pl.’s Compl. at ¶ 4, Ex. A at § 2(c), D.I. 1; see also Def.’s Ans. at ¶ 4, D.I. 8.

4 Pl.’s Compl., Ex. A at § 2(a). (“If the vehicle is damaged, destroyed, or missing[, 

you] agree to pay us all you owe under contract [...].”), D.I. 1.

5 Pl.’s Compl., Ex. A at § 3(b) (“You may have to pay all you owe at once. If you 

break your promises (default) we may require that you pay all you owe on the 

contract at once [...].”), D.I. 1.

6 Pl.’s Compl., Ex. A at § 2(d). (“You agree to have physical damage insurance 

[...].”), D.I. 1.

7 Def.’s Third-Party Compl. at ¶ 3, D.I. 8.

8

Id.
4

payments and insure the vehicle.9 After receiving the vehicle from Guthrie, Brooks 

moved to Florida and remains a resident there.10

Shortly after relocating, Brooks damaged the vehicle in a collision, “resulting 

in a total loss.”11 Although M&T Bank and Guthrie dispute whether M&T Bank 

repossessed the vehicle voluntarily, the vehicle was sold by M&T Bank after 

repossession.12 The parties also dispute the amount recovered from the sale.13 After 

deducting the sale proceeds from the total amount owed under the Agreement, M&T 

Bank claims it is still owed damages, and seeks a total of $31,309.17, with interest, 

counsel fees, late charges and costs permitted under the Agreement.14 

On July 23, 2019, M&T Bank filed this Complaint against Guthrie.15 Guthrie 

filed a Motion to Quash Service of Summons (“Motion to Quash”),16 which this 

Court denied on September 9, 2019.17 Guthrie filed an Answer to M&T Bank’s 

Complaint on September 30, 2019.

18

 In it, he denies breaching the Agreement, 

 

9

Id. at ¶ 4. 

10 Id. at ¶ 5. 

11 Id. at ¶ 7. 

12 Pl.’s Compl. at ¶ 6-7, D.I. 1; see also Def.’s Ans. at ¶ 6-7, D.I. 8. 

13 Id. at ¶ 5-6. (M&T Bank states in its Complaint that $513.50 was applied to 

Guthrie’s arrears. D.I. 1. In his Answer, Guthrie challenges that amount. D.I. 8.)

14 Pl.’s Compl., D.I. 1. 

15 Id.

16 D.I. 4.

17 D.I. 6.

18 D.I. 8.
5

asserts five affirmative defenses, and adds a third-party complaint against Brooks.19 

On December 26, 2019, M&T Bank filed this Motion,

20 and on January 31, 2020, 

Guthrie responded.21 On February 26, 2020, Guthrie moved for default judgment 

against Brooks,22 which this Court granted on March 16, 2020.23

III. STANDARD OF REVIEW

Under Superior Court Civil Rule 56(c), a party is entitled to summary 

judgment if the moving party can show that there is no genuine issue as to any 

material fact and the moving party is entitled to a judgment as a matter of law.24 

When material facts are in dispute or “it seems desirable to inquire more thoroughly 

into the facts to clarify the application of the law to the circumstances,” summary 

judgment will not be appropriate.25 The party moving for summary judgment bears 

the initial burden of showing no material issues of fact are present.26 When a moving 

party meets his initial burden of showing that no material issues of fact exist, the 

burden shifts to the nonmoving party to show that such issues do exist.27

 

19 Id. 

20 D.I. 15.

21 D.I. 19.

22 D.I. 20.

23 D.I. 23. 

24 Del. Super. Ct. Civ. R. 56(c).

25 Ebersole v. Lowengrub, 180 A.2d 4678, 468-69 (Del.1962) (citing Knapp v. 

Kinsey, 249 F.2d 797 (6th Cir. 1957)).

26 Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).

27 Del. Super. Ct. Civ. R. 56(c). 
6

IV. THE CONTENTIONS OF THE PARTIES 

M&T Bank asserts that “[t]he Agreement provides that upon [Guthrie’s] 

failure to pay when due [...], the loan shall be in default and [M&T Bank] may 

accelerate [...] the outstanding principal balance and accrued interest together with 

any additional amounts payable shall be immediately due and payable without 

demand.”28 As a result of Guthrie’s failure to make payments on the Agreement and 

failure to obtain insurance, M&T Bank argues that Guthrie has breached the 

Agreement and requests this Court to grant the Motion and award damages.29

Guthrie, in his Answer, denies that he breached the Agreement by failing to 

make the required payments.30 However, in Guthrie’s Third-Party Complaint against 

Brooks, Guthrie alleges that “John Brooks breached his agreement with [Guthrie] by 

failing to make payments on the installment loan and by failing to [insure] the 

[v]ehicle.”31

V. DISCUSSION

The Court first addresses whether M&T Bank has met its summary judgment 

burden as to its breach of contract claim. It then addresses any relevant affirmative 

 

28 Pl.’s Mot. for Summ. J. at ¶ 2, D.I. 15.

29 Id. at ¶ 5.

30 Def.’s Ans. at ¶ 10, D.I. 8.

31 Def.’s Third-Party Compl. at ¶ 9, D.I. 8.
7

defenses. To meet its burden under this Motion, M&T Bank must show that no 

genuine issues of material fact are present.32

 A. Breach of Contract

The record establishes that Guthrie did not make payments or obtain 

insurance, as required under the Agreement, but instead delegated these duties to his 

cousin.33 That delegation does not absolve Guthrie of liability under the Agreement 

between himself and M&T Bank. In fact, it violates another term of the 

Agreement.34

Under the Agreement, Guthrie, as the named party to the contract, was 

responsible for insuring the vehicle and making monthly payments.35 He did not do 

either. By failing in those responsibilities, Guthrie breached the Agreement and 

M&T Bank is entitled to summary judgment, at least in part. 

 B. Affirmative Defenses 

In his Response to the Motion, Guthrie relies upon the affirmative defenses 

set out in his Answer,36 which the Court now addresses. First, Guthrie asserts that 

 

32 Del. Super. Ct. Civ. R. 56(c). 

33 Def.’s Third-Party Compl. at ¶¶ 8,9, D.I. 8.

34 See Pl.’s Compl., Ex. A. § 2(b). (“You agree not to [...] sell, rent, lease, or 

transfer any interest in the Vehicle [...] without our written permission”), D.I. 1.

35 See Pl.’s Compl., Ex. A, D.I. 1.

36 Def.’s Resp. to Mot. for Summ. J., D.I. 19; Def.’s Ans. at 1-2, D.I. 8.
8

“[M&T Bank’s] complaint fails to state a claim upon which relief can be granted.”

37

This affirmative defense is without merit. M&T Bank’s Complaint very clearly sets 

forth a claim for breach of contract for which relief can be granted.

Second, Guthrie claims that “[M&T Bank’s] claims may be barred and/or 

reduced by [M&T Bank’s] failure to make a reasonable sale under the Uniform 

Commercial Code.”38 Under Hicklin v. Onyx Acceptance Corp.,

39 the failure to 

establish a commercially reasonable sale of secured collateral bars a recovery of any 

deficiency.40 This affirmative defense goes to the issue of damages, indeed, whether 

M&T Bank is entitled to damages at all. Because the record on the question of 

whether the sale of the vehicle was commercially reasonable is undeveloped, M&T 

Bank is not entitled to summary judgment as to damages. 

Third, Guthrie argues that “[M&T Bank] failed to mitigate its damages.”

41

This affirmative defense also involves the issue of damages as well, and, similarly, 

M&T Bank is not entitled to summary judgment on that issue. 

 

37 Id. at 1. 

38 Id. 

39 Hicklin v. Onyx Acceptance Corp., 970 A.2d 244 (Del. 2009).

40 Id. at 254. 

41 Def’s Ans. at 2, D.I. 8.
9

Fourth, Guthrie contends that “[M&T Bank] made improper service of process 

upon [Guthrie].”42 The Court previously resolved this issue.43 Guthrie asserts 

service should be made according to Superior Court Civil Rule 4(f)(1)(I)44 and 

contends that M&T Bank attempted to provide service according to Superior Court 

Civil Rule 4(f)(1)(II) by leaving service of process materials with Guthrie’s eleven 

year old daughter at their residence.

Guthrie misinterprets Rule 4(f)(1)(I). Here, service was made on an adult, 

Guthrie, in accordance with Superior Court Civil Rule 4(f)(1)(I). Although a copy 

of the summons, complaint and affidavit were left with Guthrie’s eleven year old 

daughter, in effect, service was made on Guthrie. By leaving the materials “at 

[Guthrie’s] usual place of abode with some person of suitable age and discretion then 

residing therein,”45 M&T Bank served Guthrie. There is no indication, under 

Delaware Superior Court Service of Process rules or Delaware case law, that 

 

42 Id. 

43 D.I. 6. 

44 Del. Super. Ct. R. 4(f)(1)(I). (“Upon an individual other than an infant or 

incompetent person by delivering a copy of the Summons, Complaint and 

Affidavit, to that individual personally or by leaving copies thereof at that 

individuals dwelling house or usual place of abode with some person of 

suitable age and discretion then residing therein, or by delivering copies thereof 

to an agent authorized by appointment or by law to receive service of process.”) 

(emphasis added). 

45 See Id.
10

Guthrie’s eleven year old daughter was a person of unsuitable age and discretion for 

purposes of accepting service under Rule 4(f)(1)(I). This affirmative defense is 

without merit, and does not prevent summary judgment. 

Last, Guthrie asserts that “[Guthrie] reserves his right to file additional 

affirmative defenses upon the close of discovery.”46 This affirmative defense 

requires no response nor does it require this Court to withhold judgment at this 

juncture. 

The Court finds that Guthrie has failed to raise any relevant affirmative 

defense that would bar M&T Bank’s breach of contract. Further, the Court finds that 

there are no genuine issues of material fact as to that claim. Guthrie’s failure to make 

the monthly payments under the Agreement, his failure to insure the vehicle as 

required under the Agreement, and his failure to abide by the Agreement’s transfer 

restriction mean that M&T Bank is entitled to summary judgment on the issue of 

breach of contract. 

 C. Damages

In order to recover damages, M&T Bank must establish that the sale of the 

vehicle was commercially reasonable. It can show commercial reasonableness in 

one of two ways - either by establishing that every aspect of the sale was conducted 

 

46 Def.’s Ans. at 2, D.I. 8.
11

in a commercially reasonable manner, or by showing that it sold the vehicle in 

accordance with the accepted practices of reputable dealers in that type of property.47 

The current record before the Court establishes neither, and it seems desirable to 

inquire more thoroughly into the facts surrounding the sale. For that reason, and for 

now, the Court must deny the portion of the Motion seeking summary judgment as 

to damages. 

VI. CONCLUSION

For the reasons stated above, M&T Bank’s Motion for Summary Judgment is 

GRANTED as to breach of contract and DENIED as to damages. 

IT IS SO ORDERED. 

 /s/ Ferris W. Wharton

 Ferris W. Wharton, J. 

 

47 Hicklin at 250.