Alexandros Tsipouras v. Check & Go ( 2014 )

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
ALEXANDROS TSIPOURAS, )
Plaintiff, §
v. g C.A. No. CPU5-13-00l080
CHECK & GO, §
Defendant. §
)
Date submitted: February 14, 2014
Date decided: April 1, 2014
DECISIONAFTER TRL4L
JUDGMENT FOR DEFENDANT
Mr. Alexandros Tsipouras, 595 Graves End R0ad, Smyma, DE 19977, pro se Plaintiff Below-
Appellant.
Kara M. Swasey, Esquire, Bayard, 222 Delaware Avenue, Suite 900, P.O. Box 25130,
Wilmington, DE, 19899 Att0rney for Defendant Below- Appellee.
Reigle, J.
Procedure
This matter was originally filed on June 4, 2012 by Alexandros Tsipouras ("Mr.
Tsipouras") as a Pl~aintiff representing himself in the Justice of the Peace Court. The Defendant
was identified as "Check & Go."l Mr. Tsipouras filed a hand-written allegation in his complaint
on the Justice of the Peace Court forrn. lt stated: "Title loan issues (Don’t get all Money) was
there to pay on time didn’t except (sic) cash wants check call police could not get report
following month have a check They don’t except (sic) check they want cash owner call police
borrowed (sic) from store not to go by police."z The amount claimed was $1000.00. Check &
Go denied the allegations and the matter was scheduled for trial on August 30, 2012. Mr.
Tsipouras failed to appear for trial and the judge dismissed his case. On September 7, 2012, Mr.
Tsipouras filed a motion to vacate the dismissal citing confusion over the date as the reason for
not being present for trial. The Motion was denied. On October 11, 2012, Mr. Tsipouras
appealed that decision to this Court. After several procedural steps, on August 1, 2013, this
Court reversed the denial of the motion to vacate and remanded the case to the Justice of the
Peace Court for another trial date. On September 20, 2013, a trial was held in the Justice of the
Peace Court. Mr. Tsipouras’ case was dismissed during the trial, for failure to prosecute, due to
his conduct in the courtroom. He appealed to this Court and a new trial was scheduled.3 lt was
held on January 29, 2014 in the Court of Common Pleas.
1 The business is actually entitled "Check ‘n Go."
2 Complaint, Justice of the Peace Court.
3 Mr. Tsipouras appealed from a final judgment of the Justice of the Peace Court dismissing his case. "[A]s a
general rule, a dismissal with prejudice has the effect of a final adjudication on the merits." Jackson v. Pz`kulik, 2007
WL 5006531, at *2 (Del. Com. Pl. Dec. 18, 2007). Mr. Tsipouras appealed directly from the lower court’s final
judgment to this Court. The standard of review on appeal is by trial de novo.
Trial
At the trial, Mr. Tsipouras represented himself and testified on his own behalf. He also
called two police officers as witnesses.4 lt was obvious that Mr. Tsipouras was very frustrated
and believed that he was wronged by Check & Go. He was argumentative and loud at times, but
he did follow the Court’s instructions and answered all of the Court’s questions. Kara M.
Swasey, Esquire represented Check & Go. She called two witnesses on behalf of her client. She
was extremely patient with Mr. Tsipouras and with this Court’s efforts to determine if Mr.
Tsipouras had a claim against Check & Go. In addition, upon the Court’s request for possible
legal arguments and precedent, Ms. Swasey filed a letter with the Court which answered the
Court’s questions fiilly. The Court was satisfied that all issues were fully vetted. Ultimately,
despite considerable effort to uncover any potential or possible claim during trial or during a
review of the law after the trial, the Court finds that Mr. Tsipouras was unable to prove any case
or claim against Check & Go for $1000.00 or any other amount by a preponderance of the
evidence and therefore the Court finds in favor of the Defendant. This is the Court’s Final
Decision and Order.
Facts
Based upon the testimony and evidence admitted at trial, the Court finds the following
relevant facts to exist. Mr. Tsipouras was a customer of Check & Go and had received several
loans from it when, on December 27, 2011, he entered into his first "title loan" agreement. The
agreement with Check & Go attached Mr. Tsipouras’ 1996 Mercury Sable as collateral in
exchange for a loan in the principal amount of $585.5 Mr. Tsipouras retained in possession of
4 In an effort to fully litigate this matter and give Mr. Tsipouras every effort to make his case, both police officers
were contacted by the Court to remind them of their summons.
5 Defendant’s Exhibit B was introduced by Miriam Home, a district manager for Check & Go.
3
the vehicle, but gave Check & Go the title to the vehicle with the expectation that Check & Go
would return the title to him when the loan was paid in full.
Mr. Tsipouras made the requisite installment payments on the title loan as they became
due, beginning on February 3, 2012. He made payments in April and March without incident.
When Mr. Tsipouras arrived at the Check & Go store to pay his installment on May 4, 2012, he
tried to make his payment with a check, but was informed by the teller that she could not accept
a check as payment on a title loan. At some point during the ensuing conversation with the
teller, Mr. Tsipouras argued with another customer in line. When the argument escalated, the
police were called. Sergeant Eastridge6 of the Smyrna Police Department responded to Check &
Go. When he completed his'investigation, Sergeant Eastridge informed Mr. Tsipouras that he
was not permitted to go back inside Check & Go. Sergeant Eastridge further suggested to Mr.
Tsipouras that if he had an issue with Check & Go, he should go to the Justice of the Peace Court
and file a civil lawsuit.
Mr. Tsipouras subsequently received telephone calls and letters from Check & Go to
request the installment payment on the loan. Mr. Tsipouras understood that the agreement
explicitly stated that repayment of the loan could only be made by cash or electronic funds
transfers. Mr. Tsipouras recently changed banks and his bank information on the security
agreement was incorrect. He believed that because he was not permitted to enter the store, he
either could not provide Check & Go with his new banking infonnation for an electronic funds
transfer or was not obligated to provide it.
Check & Go’s collection department sent a notice of default to Mr. Tsipouras on May 29,
2012, requesting immediate payment.7 A payment could have been made on Mr. Tsipouras’ loan
6 This witness testified by telephone without objectiori.
7 Defendant’s Exhibit A.
in another Delaware Check & Go location or via mail. Check & Go would have accepted a
money order or cashier’s check in addition to cash. Mr. Tsipouras told Check & Got during a
telephone call that he had filed a lawsuit with the Justice of the Peace Court and would pay
whatever the judge ordered him to pay. Mr. Tsipouras stubbornly did not make or attempt to
make a payment on the loan after the incident in the store on May 4, 2012. Mr. Tsipouras was
aware that if he did not make a payment, the agreement authorized Check & Go to take
possession of his vehicle.
On December 23, 2012, while Mr. Tsipouras’ appeal was pending before this Court,
Check & Go took Mr. Tsipouras’ vehicle. Mr. Tsipouras strongly contested the taking of his
motor vehicle and called the police. The police officers refused to intervene for Mr. Tsipouras
and halt the taking of possession of the motor vehicle.9
Arguments
Mr. Tsipouras asked the Court to award him $1,000 against Check & Go for the
inconvenience and costs incurred by him in trying to pay back his loan. He also requested that
the Court award him the purchase price of his vehicle pursuant to Check & Go’s wrongful taking
of possession of his motor vehicle. Counsel for the defense argued that Check & Go never
prohibited Mr. Tsipouras from returning to the Smyma location and that in the event Mr.
Tsipouras thought he could not retum there, the loan could have been paid by other means.
Check & Go argued it had a right to take Mr. Tsipouras’ vehicle pursuant to the signed
agreement when Mr. Tsipouras defaulted on his loan by failing to make a payment on or after
May 4, 2012.
8 A police officer did not testify to these facts. Mr. Tsipouras was unable to identify the officer for purposes of
subpoenaing him to trial. This information was provided by Mr. Tsipouras.
9 Whether there was an improper possession of the vehicle claim due to a breach of peace was addressed by counsel
and the Court was satisfied that there was no merit to it.
Issue Pemling Before the Court
Although Check & Go has defended itself in this action filed by Mr. Tsipouras, it did not
take any action against Mr. Tsipouras. Generally, when issues of repossession come before the
Court, there is a claim for a deficiency between the amount of the loan due and the amount
recovered by the creditor when it sold the collateral. If such was the case here, it was never
pursued by Check & Go. Although initially telephone calls and letters were made to Mr.
Tsipouras regarding his missed payments, the subsequent taking possession of Mr. Tsipouras’
motor vehicle either satisfied the debt or was forgiven by Check & Go. This makes this case
somewhat backwards and it has been difficult to determine how to characterize Mr. Tsipouras’
claim in a way that the Court could determine if relief could be granted. He cannot sue for
"wrongful taking of possession" because his motor vehicle had not been taken at the time he
filed his original complaint in the Justice of the Peace Court and he did not file a claim for
replevin. Rather, Mr. Tsipouras’ claim is essentially for $1,000.00 for Check & Go refusing to
accept an installment payment by check at one of its locations. This could be characterized as a
breach of contract against Check & Go. Therefore, the issue pending before the Court is whether
Mr. Tsipouras has proven by a preponderance of the evidence that Check & Go breached the
terms of the agreement by refusing to accept his payment by check on May 4, 2012 and therefore
entitled to si,000.00 for that btettch. ‘°
1° The Court was concemed about Check & Go’s continuation with its collection of Mr. Tsipouras’ debt after his
complaint was filed in the Justice of the Peace Court. The Court determined that the Defendant did not breach a stay
of action. Court of Common Pleas and Justice of the Peace Court Civil Rules 62 govern stays of action. Automatic
stays during pending litigation are limited in scope and time. Stays on appeal require a motion and surety. None of
the requirements for a stay under this the court rules are applicable in this case.
Law
To establish a breach of contract, the plaintiff must prove (l) a contract existed between the
parties, (2) the defendant breached a term of that contract, and (3) the plaintiff suffered damages
as a result of the defendant’s breach.ll A plaintiff has the burden of proving a claim for breach
of contract by preponderance of the evidence.n
Analysis
Mr. Tsipouras failed to meet his burden of establishing the elements of a breach of
contract. First, Mr. Tsipouras failed to show that Check & Go breached the tenns of the
agreement by refusing to accept his payment by check on May 4, 2012. The evidence presented
at trial clearly showed that the parties voluntarily entered into and signed a valid contract for a
title loan secured by Mr. Tsipouras’ vehicle. The agreement explicitly stated that Mr. Tsipouras
would pay each installment on the loan by cash or electronic funds transfer. Check & Go did not
breach its contract by refusing to accept a check at its store.
Second, Mr. Tsipouras failed to show that Check & Go breached the terms of the
agreement by banning him from its Smyma store. While Check & Go denies that it banned Mr.
Tsipouras from the store, it was reasonable for him to believe that he was banned by Sergeant
Eastridge. However, Check & Go did not fail to provide other reasonable alternatives for Mr.
Tsipouras to make his payment. lt was Mr. Tsipouras who failed to go to another of the several
Check & Go locations in Delaware to make a payment or to pay the loan by mail or by a third
party. ln addition, Mr. Tsipouras caused the initial problem at the store on May 4, 2012, by
refusing to accept the teller’s instructions. Mr. Tsipouras signed the agreement accepting that he
“ wilkinson cousin v. Brt'ce Builders, 2005 wL 953131, at *i (Del. Com. Pi.) citing VL1W Tech., LLc v. Hewlett_
Packard Co. Stmicroelectronics, Inc., 840 A.2d 606, 612 (Del. 2003).
12 Interz`m Healthcare, Inc. v. Spherion Corp., 884 A.2d 5 13, 545 (Del. Super. Ct. 2005).
7
would be in default if he failed to make a payment on an installment date. Mr. Tsipouras failed
to prove that Check & Go breached the contract.
Decision of the Court
The Court concludes that the Plaintiff has failed to prove his case by a preponderance of
the evidence. Judgment is entered for the defendant.
IT IS SO ORDERED.
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