IN THE SUPERIOR COURT
OF THE VIRGIN ISLANDS

FILED

June 15, 2023 08:22 3M
ST-2012-CV¥-00239
TAMARA CHARLES
CLERK OF THE COURT

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

FIRSTBANK PUERTO RICO,
Plaintiff,

CASE NO. ST-2012-CV-00239

VS.

EDMOND WEBSTER a/k/a EDMOND

R. WEBSTER, BERNICE WEBSTER,
CLEVE E. WEBSTER a/k/a CLEVE
WEBSTER, OASIS DEVELOPMENT, LLC,
and TRIUMPH DEVELOPMENT, LLC,

ACTION FOR DEBT,
FORECLOSURE OF LIENS,
and SPECIFIC PERFORMANCE

Defendants.

NOVELLE JOSEPH,
Intervenor/Plaintiff,
vs.

FIRSTBANK PUERTO RICO,

EDMOND WEBSTER a/k/a EDMOND

R. WEBSTER, BERNICE WEBSTER,
CLEVE E. WEBSTER a/k/a CLEVE
WEBSTER, OASIS DEVELOPMENT, LLC,
and TRIUMPH DEVELOPMENT, LLC,

ACTION FOR REPLEVIN,
CONVERSION, ACCOUNTING,
DEBT, UNJUST ENRICHMENT,
and PUNITIVE DAMAGES

Defendants.

FIRSTBANK PUERTO RICO,
Counterclaimant,
vs.

NOVELLE JOSEPH and the OFFICE

OF THE VIRGIN ISLANDS MARSHAL, Cite as 

Counterclaim Defendants.

Nm” meme” Name” “nem” Naeem” “meet! Mime “emeert” Teme” mmo” meee! Somme! “tagmet” nem’ “ommee” ee!” Singer” “hemes “tem” “Nome! “ome!” “mmo” “nme!” Semmes” “nme” “meme” “ome” “meme” “mee” Smee” Sper” “emer” tee” “Se”

FOR PUBLICATION
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APPEARANCES:

JUSTIN K. HOLCOMBE, Esq. STYLISH E. WILLIS, Esq.

LisA MICHELLE KOMIVES, Esq. St. Thomas, U.S.V.I.

Dudley Newman Feuerzeig, LLP Attorney for Intervenor, Novelle Joseph
St. Thomas, U.S.V.I.

Attorneys for Plaintiff and Intervenor

Defendant, FirstBank Puerto Rico

DARREN JOHN-BAPTISTE, Esq.

Law Offices of Darren John-Baptiste

St. Thomas, U.S.V.I.

Attorney for Defendants, Edmond Webster,
Bernice Webster, Cleve Webster, Oasis
Development, LLC, and Triumph
Development, LLC

MACKAY, KATHLEEN, Judge

MEMORANDUM OPINION

qi THIS MATTER is before the Court on FirstBank Puerto Rico’s (“FirstBank”) Motion for
Summary Judgment Against Intervenor Novelle Joseph, filed March 29, 2019,! For the reasons set
forth herein, the Court will grant FirstBank’s motion in part and deny it in part.
BACKGROUND AND PROCEDURAL POSTURE

q2 Intervenor Novelle Joseph’s (“Joseph” or “Intervenor”’) Complaint is the result of an
unusual fact pattern in FirstBank’s action for foreclosure: after judgment and an order of
foreclosure were entered, Defendants Edmond Webster, Bernice Webster, Cleve Webster,
Triumph Development, LLC, and Oasis Development, LLC (collectively, the “Websters” or

“Underlying Defendants”) appealed the case and ultimately secured a reversal of the judgment and

' The Motion is fully briefed. Novelle Joseph filed his Opposition on April 29, 2019, and FirstBank filed its Reply on
May 17, 2019.
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order of foreclosure. But in the meantime, the properties at issue had been sold at Marshal’s Sale
to a third party, Intervenor Novelle Joseph. After the Marshal’s Sale was confirmed, Joseph filed
suit against FirstBank to obtain a refund of the monies he paid to complete the purchase as the
successful bidder at the Marshal’s Sale. Joseph’s six-count complaint in intervention alleges
replevin, conversion, accounting, debt, unjust enrichment and punitive damages (“Intervenor
Complaint”). Pursuant to court order, and since the filing of Joseph’s Intervenor Complaint,
FirstBank tendered and returned all funds to Joseph.’

q3 FirstBank moves for summary judgment on all of Joseph’s claims, contending that because
Joseph has already received a full refund of the monies he tendered to purchase the properties at
the Marshal’s Sale and because there are no genuine disputes of material fact, it would be equitable
for the Court to grant summary judgment.’ Joseph opposes FirstBank, claiming there are genuine
issues of material fact barring summary judgment.

q4 FirstBank’s Statement of Undisputed Material Facts (“SUMF”) consists of twenty (20)
paragraphs. Joseph’s Responses to Undisputed Facts (“RUF”) agreed with all 20 paragraphs of the
SUMF. Joseph opposed the motion for summary judgment and filed a Statement of Additional
Facts (“SOAF”) that states seventeen (17) additional facts. However, none of those facts contradict
First Bank’s SUMF. In addition, FirstBank’s Reply did not challenge anything from Joseph’s
SOAF. Therefore, the facts proffered by both FirstBank and Joseph are unchallenged. Neither

party having challenged the undisputed facts proffered by the other, the Court will accept as

? A more complete set of facts regarding FirstBank’s claims against the Defendants is delineated in FirstBank v.
Webster, 

.

3 Count VI of the Intervenor Complaint is a claim for punitive damages. However, FirstBank’s Motion for Summary
Judgment does not address the claim for punitive damages. Therefore, the Court will not address that claim herein and
to the extent the motion for summary judgment sought dismissal of that claim, that portion of the motion will be
denied.
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undisputed all facts submitted by both sides for purposes of deciding the subject motion for
summary judgment.‘ The facts are set forth in the next section.
UNDISPUTED FACTS?

q5 This matter originated on May 11, 2012, when FirstBank filed a complaint against the
Underlying Defendants, seeking a judgment of debt and foreclosure, The complaint alleges the
Websters defaulted on a series of construction loans and loan modifications FirstBank issued the
Websters from 2007 to 2010, and notes executed by the Websters in favor of FirstBank over the
same time period.® After lengthy motions practice, on July 7, 2016, the Superior Court entered
final judgment and order of foreclosure in favor of FirstBank and ordered the mortgaged properties
sold by the Office of the Virgin Islands Marshal (“OVIM”) at Marshal’s sale. The Websters timely
filed an appeal but the matter continued to a Marshal’s sale on December 14, 2016 (‘Marshal’s
Sale”). Joseph was unaware the Websters had appealed the final judgment and order of foreclosure
when he bid at the Marshal’s Sale. Joseph did not obtain any appraisals, legal advice, evaluations,
or title searches prior to the Marshal’s Sale.’ At the Marshal’s Sale, Joseph heard “verbatim the
terms of the sale” read by the Marshal. Joseph was the winning bidder with a bid of One Million,

Seven Hundred Five Thousand dollars ($1,705,000.00). Thereafter, he immediately paid the

* A few of FirstBank’s unchallenged facts cite to Novelle Joseph’s deposition testimony. However, the Court finds
that the “facts” include inferences not found in the deposition testimony. But because Joseph agreed with FirstBank’s
facts, the Court has determined it would be error to correct or make more precise the facts offered by FirstBank.

> Much of the “undisputed facts” submitted by First Bank are not material to the motion for summary judgment against
Intervenor Joseph as the majority of the undisputed facts pertain only to FirstBank’s claims for debt and foreclosure
against the Websters and not on the dispute between Joseph and FirstBank. Therefore, the Court has condensed the
non-pertinent facts. Similarly, Intervenor Joseph submitted “additional facts” that are not material to the motion for
summary judgment, but the Court will include them here for purposes of completeness.

° A complete recitation of the details surrounding the toans and notes may be found at FirstBank Puerto Rico v.
Webster, 

, where the Court addressed a motion for summary judgment filed by FirstBank against
the Underlying Defendants. Therein, the Court granted partial summary judgment to FirstBank and found that the
Websters are indebted to FirstBank for the sum of $5,252,143,71.

7 See SUMF at J 7, citing Exhibit 2, at 14:15-19, 39:2-40:7.
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required ten percent (10%) of the bid, One Hundred Seventy Thousand, Five Hundred dollars
($170,500.00), and paid the remaining One Million, Five Hundred Thirty-Four Thousand, Five
Hundred dollars ($1,534,500.00) to the Cashier of the Superior Court, on January 11, 2017.

{6 Joseph had previously held the funds he used to make the payments within a checking
account, which “may not have been interest bearing.”*® After making his final payment to the
Cashier of the Superior Court, Joseph consulted with his counsel regarding the property and a
purchase offer he received from the Websters.’ Joseph knew tenants were occupying the premises
and he had a right to collect rent payments, but he did not do so, nor did he demand the Websters
return to him any rent they collected.'° Thereafter, Joseph obtained a survey of the property and
determined there were “a lot of encroachments on the property” which “took his interest away”
and “‘discourage[d] [him] from becoming the owner” because “without the treatment plant, the
property is no value.””!!

q7 The Superior Court entered an order confirming the Marshal’s Sale on February 24, 2017,
with the redemption period scheduled to expire on August 24, 2017.'? Shortly after the order
confirming the Marshal’s Sale was entered, OVIM tumed over the sale proceeds to FirstBank as
the judgment creditor."

48 However, in the interim, the Webster’s appeal of the judgment and order of foreclosure

remained pending. On April 24, 2017, the V.I. Supreme Court issued an opinion vacating the

judgment and order of foreclosure, as well as all of the Superior Court’s dispositive rulings on the

8 See SUMF at { 9, citing Exhibit 2, at 38.

® See SUMF at J 10, citing Exhibit 2, at 33:9-25, 34: 1-8, 52:14-17.

'0 See SUMF at J 11, citing Exhibit 2, at 44:21-23, 57:8-15, 93:11-17.

'! See SUMF at ff 12-13, citing Exhibit 2 at 34:19-20, 55:5-6, 35:15.

'2 See SUMF at ¥ 15. Notably, however, in his SOAF, at 7 3, Joseph contends FirstBank never served him with a copy
of its motion for order confirming sale (attached as Exhibit 1 to FirstBank’s SUMEF).

3 See SUMF at ¥] 15.
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parties’ claims. Webster v. FirstBank Puerto Rico, 

 (V.I. 2017). The Supreme
Court’s decision did not address the Marshal’s Sale; it focused primarily on the Superior Court’s
failure to ensure the parties participated in statutorily required mediation, pursuant to title 28,
section 531(b) of the Virgin Islands Code, before entering orders disposing of FirstBank’s claims.
Id, at 520-21. Noting that the parties went to mediation after the Superior Court entered a series
of orders granting partial summary judgment in favor of FirstBank, the Supreme Court determined
FirstBank would have no motivation to pursue a “good faith” resolution of the matter through
mediation, since FirstBank “was aware that if it chose not to settle through mediation, it would
receive a complete recovery on all its claims.” /d. at 520. The Supreme Court remanded the case
to the Superior Court for immediate referral to mediation and assignment to a different judge. Jd.
at 521.

q® § Joseph learned of the Supreme Court’s ruling after it was entered, from OVIM as well as
FirstBank’s counsel.'* At that time OVIM also told Joseph the Marshal’s Sale was deemed null
and void as a result of the Supreme Court decision,'> but counsel for FirstBank informed Joseph
the Marshal’s Sale was valid.'® Thereafter, Joseph verbally demanded FirstBank return his
money.!? FirstBank declined, so Joseph engaged legal counsel who, on August 14, 2017, served a
letter on FirstBank and OVIM, demanding return of the proceeds from the Marshal’s Sale.'® On
August 24, 2017, the redemption period expired, and the next day, Joseph demanded OVIM

prepare the Marshal’s deed (“Deed”) for the property and deliver it within two weeks, or, in the

'4 See SOAF at { 7, citing Exhibit A at 42:2-25, 43:1-23.
'5 See SOAF at J 8, citing Exhibit A at 42:2-25, 43:1-23.
16 See SOAF at 9, citing Exhibit A at 42:2-25, 43:1-23.
17 See SOAF at 10, citing Exhibit A at 68:8-23.

'8 See SOAF at { 13, citing Exhibit C.
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event the Deed could not be prepared, Joseph demanded the full amount of sale proceeds plus

paccrued interest,'92°
410 =©Ultimately, on October 26, 2017, Joseph filed an Emergency Motion to Intervene as
Plaintiff and the six-count Intervenor Complaint against FirstBank and the Websters. Joseph’s
Intervenor Complaint includes counts for replevin, conversion, accounting, debt, unjust
enrichment, and punitive damages. However only five of the six counts are directed at FirstBank
(in addition to the Websters); Count III, a claim for an accounting, is only directed against the
Websters.”! Joseph’s complaint sought a return of the purchase price from FirstBank and continues
to seek interest thereon and punitive damages from FirstBank.””
G11 On December 15, 2017, Joseph filed an Expedited Motion for Return of Intervenor’s
Funds, requesting an immediate refund of the sale proceeds. The Court granted Joseph’s Motion

- to Intervene, later granted Joseph’s Motion requesting. that the funds be returned to him, vacated
the order that had confirmed the Marshal’s Sale and ordered FirstBank to return the proceeds of
the Marshal’s Sale to Joseph by no later than April 30, 2018.” FirstBank filed a motion for
reconsideration of the March 5 Order. The Court issued an order staying enforcement of the March
5 Order, pending its ruling on FirstBank’s motion for reconsideration.“ On July 18, 2018, the

Court entered a memorandum opinion granting reconsideration but upholding its March 5 Order

directing FirstBank to return all funds to Joseph within twenty days (“2018 Opinion”).?> FirstBank

'9 See SUMF at ¥ 16, citing Exhibit 3.

20 There is no indication in the summary judgment record that OVIM prepared the Deed nor did FirstBank refund
Joseph the sale proceeds at that time.

7! Because Count III does not involve FirstBank, the Court need not analyze the claim for an accounting in the instant
opinion.

?2 From the Websters, Joseph seeks all rents and/or profits on the rents the Websters collected after the Marshal’s Sale
and interest thereon. Joseph also seeks punitive damages from the Websters.

23 See Order, entered March 5, 2018.

4 See Order, entered June 7, 2018.

33 See FirstBank Puerto Rico v. Webster, No. ST-12-CV-239, 

 (V.1. Super. Ct. July 18, 2018).
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complied and delivered to Joseph a check for the full amount of the proceeds, $1,705,000.00, on
August 15, 2018.
q1i2  FirstBank now moves the Court to enter summary judgment on Joseph’s claims in this
matter, contending there are no genuine issues of material fact and there is no reason Joseph should
be awarded interest on the sale proceeds for the period of time he went without those funds.
LEGAL STANDARD
413 Summary Judgment is governed by Rule 56 of the Virgin Islands Rules of Civil Procedure,
which states, in pertinent part:
A party may move for summary judgment, identifying each claim or defense or the part of
each claim or defense on which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. The court should state on
the record the reasons for granting or denying the motion.
V.I.R. Civ. P. 56(a). Rule 56 further provides that “[e}ach summary judgment motion shall include
a statement of undisputed facts in a separate section within the motion” and that “[e]Jach paragraph
stating an undisputed fact shall be serially numbered and each shall be supported by affidavit(s)
or citations identifying specifically the location(s) of the material(s) in the record relied upon
regarding such fact.” V.I. R. Civ. P. 56(c)(1). The Virgin Islands Supreme Court has held that
summary judgment is appropriate when after “considering all of the evidence, accepting the
nonmoving party’s evidence as true, and drawing all reasonable inferences in favor of the
nonmoving party, the court concludes that a reasonable jury could only enter judgment in favor of
the moving party.” Antilles School, Inc. v. Lembach, 

 (V.I. 2016). Summary

judgment is a “drastic remedy” and only proper where “the pleadings, the discovery and disclosure

materials on file . .. show that there is no genuine issue as to any material fact[.]” James v. Mosler,
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2021 VI SUPER 53U, { 10 (citing Anthony v. FirstBank Virgin Islands, 58 V.1. 224, 228 (V.L.
2013)).
DISCUSSION
A. Joseph’s claims for Replevin, Conversion, and Unjust Enrichment no longer
support any remedy from this Court.

{14 Before assessing the primary focus of FirstBank’s motion for summary judgment, the Court
finds it necessary to dispose of a preliminary issue.
915 FirstBank argues that Joseph’s claims are without merit and/or are moot and as a result the
Intervenor Complaint should be dismissed. But in his opposition Joseph argues that “whether the
granting of the relief sought by Joseph was in Replevin, Conversion, Debt or Unjust Enrichment,
Joseph prevailed on his claim for the return of the Marshal’s Sale Proceeds” pursuant to this
Court’s March 5, 2018 Order granting Joseph the return of the sale proceeds and 2018 Opinion
upholding such Order, and thus Joseph’s Intervenor Complaint should not be dismissed.”® In its
reply, FirstBank points out that Joseph received restitution but the Court did not address any of the
claims set forth in Joseph’s complaint, so FirstBank argues that Joseph did not “prevail” on any of

his claims. In his original Intervenor Complaint, Joseph’s allegations against FirstBank under

26 See Joseph’s Opp. at pp. 5-6.
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Count I (Replevin),?” Count II (Conversion),”® and Count V (Unjust Enrichment),”’ request only a
return of the principal amount paid for the disputed properties, $1,705,000.00, with no mention of
interest. Count IV, Debt, articulates a claim for the principal amount and interest.°©

G16 Inthe 2018 Opinion, this Court granted restitution to Joseph, ordering FirstBank to return
to Joseph the $1,705,000.00 he paid following the Marshal’s Sale, but the Court did not explicitly
rule on any of Joseph’s claims articulated in the Intervenor Complaint. Webster, 

, at *7 (stating the decision was “not an issuance of injunctive relief[,] [nJor is the Court
granting partial summary judgment”).

qi7 Nevertheless, to the extent the Court must identify which of Joseph’s claims enabled the

restitution that the Court granted in the Court’s March 5 Order and the subsequent 2018 Opinion,

”' Seg Joseph’s Compl. in Intervention, filed Oct. 26, 2017, at $]28-29 (claiming “Defendant FirstBank’s continued
possession of the auction proceeds, $1,705,000.000, subsequent to April 24, 2017 was and is wrongful in accordance
with the Virgin Islands Supreme Court’s Opinion filed in this matter” and that “subsequent to April 24, 2017 [Joseph]
demanded Defendant FirstBank to return the $1,705,000.00 auction proceeds; however, Defendant FirstBank has
failed and/or refused to return to [Joseph] his personal property described as the $1,705,000.00 auction proceeds”).

*8 See Joseph’s Compl. in Intervention, filed Oct. 26, 2017, at 9]32-34 (stating “Defendant FirstBank is unlawfully
and/or wrongfully exercising control over the $1,705,000.00 auction proceeds and is attempting to retain the funds
with the intent to permanently exclude [Joseph] from his ownership of the said auction proceeds”; that “Defendant
FirstBank’s sole and exclusive control over the auction proceeds is inconsistent with [Joseph’s] right to control of his
property, $1,705,000.00"; and that “justice requires Defendant FirstBank to pay [Joseph] the $1,705,000.00 auction
proceeds converted by Defendant FirstBank from [Joseph]’”).

* See Joseph’s Compl. in Intervention, filed Oct. 26, 2017, at 9949-51 (claiming “Defendant FirstBank has received
$1,75,000.00 paid by [Joseph] for the auctioned properties and Defendants Websters are in possession of the auctioned
properties without having redeemed the atictioned properties all to the detriment of [Joseph]; “Defendant FirstBank .
. . [has] unjustly enriched [itself] at the expense and detriment of [Joseph] as Defendant FirstBank has failed and/or
refused to refund [Joseph] the $1,705,000.00 . . .”; and that Joseph “‘is entitled to the $1,705,000.00 cash as payment
from Defendant FirstBank, . . . preventing the unjust enrichment of Defendant FirstBank at the expense and detriment
of [Joseph}”).

"! See Joseph’s Compl. in Intervention, at $43 (stating “Defendant FirstBank, in addition to the $1,705,000.00 owed
to [Joseph], is also indebted to [Joseph] for interest accruing from the date of the filing of the Supreme Court’s Opinion
(April 24, 2017) to the present, at the legal rate, on the $1,705,000.00 received by Defendant FirstBank from the sale
of the auctioned properties”’).
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the Court now finds that Joseph’s claim for the return of the principal amount of the sale proceeds
fell within the claim for debt (Count I'V).

418 An action for debt requires the plaintiff to only demonstrate that (1) the defendant owes a
certain amount and (2) the defendant is or should be obligated to pay that amount. Greenleaf
Commons, LLC v., St. John Day Spa & Salon, LLC, 

 (citing Carlos Warehouse
v. Thomas, 64 VI. 173, 193 (V.L. Super. Ct. 2016) (performing a Banks analysis to determine the
most appropriate rule for the U.S. Virgin Islands)). The Court finds that Joseph’s claim for debt
adequately addresses the relief already granted, because the Court found that FirstBank owed
Joseph a sum certain—the sale proceeds—and that FirstBank was obligated to pay that sum to
Joseph, following the V.I. Supreme Court’s reversal of the judgment and order of foreclosure.
Therefore, FirstBank’s motion for summary judgment on the portion of the claim for debt that
claimed reimbursement of the purchase funds will be denied. However, the Court limits this
finding of success on the claim for debt only to the return of the principal amount of the funds, and

the Court will address the issue of interest in the following section.
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419 |The Court further finds none of Joseph’s other claims for a return of the sale proceeds,

Counts I (replevin)*', Count II (conversion)**, nor Count V (unjust enrichment)**, support a return
of the sale proceeds. As such the Court will grant summary judgment to FirstBank on Count I
{replevin), Count II (conversion), and Count V (unjust enrichment). Further, because those three

claims only address the return of the principal amount Joseph expended at the Marshal’s Sale and

3! Joseph does not have a valid claim for replevin. The Virgin Islands prejudgment replevin statute is set forth in Title
5 V.LC. § 211, V&A Jewelry, Inc. v. Shathout, 2015 V.1. LEXIS 177, at *2 (V.I. Super 2015). That statute addresses
an action to recover possession of personal property and requires that the owner must particularly describe the subject
property. Title 5 V.ILC. § 212. Ona similar vein, the Superior Court has held that replevin will not lie for the recovery
of money unless it is specifically described. Gray v. Moorhead, 5 VI. 19, 23-24 (V.I. Super 1964); see also 66 Am.
Jur. 2d Replevin § I (the primary relief sought in replevin is the return of the identical property). In addition, Black's
Law Dictionary defines replevin as a “lawsuit to repossess personal property wrongfully taken or detained by the
defendant,” REPLEVIN, Black's Law Dictionary (11th ed, 2019). Joseph has not described with particularity the funds
he sought to recover. Furthermore, they were likely tendered to the Court and in turn to FirstBank, by bank check. In
addition, none of the facts in this case suggest FirstBank committed any wrongful act when it received the proceeds
of the sale, as explained in the body of this opinion. Nor were the proceeds detained for an excessive period of time,
as explained in the body of this opinion. Thus, Joseph’s claim for replevin fails.

3? Joseph does not have a valid claim for conversion. To recover on a claim for conversion, plaintiff must prove that
defendant “intentionally or wrongfully exercisejd] acts of ownership, control or dominion over personal property to
which he has no right of possession at the time .. .” Ross v. Hodge, 

, (V.I. 2013). Conversion is an
intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to
control it that the actor may justly be required to pay the other the full value of the chattel. /d. at 308 (quoting
RESTATEMENT (SECOND) OF TORTS § 222 A(1) (1965)); Penn v. Mosley, 67 V.1. 879, 898 (V.I. 2017). The definition
of personal property includes “money.” | V.LC. § 41. However, as more fully explained in the body of this opinion,
the Court finds that FirstBank did not wrongfully exercise ownership or control over the proceeds of the sale of the
property sold at Marshal’s Sale; indeed, the funds were lawfully tendered to FirstBank by OVIM after the sale was
confirmed. So, Joseph's claim for conversion fails.

33 Joseph does not have a valid claim for unjust enrichment. In the Virgin Islands, unjust enrichment requires a plaintiff
to prove, (1) that the defendant was enriched, (2) that such enrichment was at the plaintiff's expense, (3) that the
defendant had appreciation or knowledge of the benefit, and (4) that the circumstances were such that in equity or
good conscience the defendant should return the money or property to the plaintiff. Walters v. Walters, 60 V.1. 768,
779-780 (V.1. 2014). As explained in the body of this opinion, FirstBank having obtained the sale proceeds through a
lawful foreclosure matter, the Court find that FirstBank’s acceptance of the sale proceeds did not enrich it (as
FirstBank’s mortgage liens were foreclosed as part of the process). Nor was FirstBank’s acceptance of the sale
proceeds at the expense of Joseph, as he was the successful bidder at the Marshal’s Sale. Therefore, Joseph’s claim
for unjust enrichment fails.
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the claim for the return of the principal amount does not fall within any of those claims, there is
no longer any substance to those claims with respect to FirstBank.**

420 Additionally, in Joseph’s original complaint in intervention, Count III, Accounting, makes
allegations against the Websters, but none against FirstBank. Accordingly, Count III is not relevant

in the instant motion, and the Court will not address it here.

B. Joseph is not entitled to interest.

q21 In its 2018 Opinion, this Court noted “there are other issues that will require further
consideration by the Court, such as Joseph’s claims for interest on the money FirstBank has in its
possession .. .” Webster, 

, at *6 n.16. Having determined that Joseph prevailed
under his claim for debt because the sale proceeds were ordered returned to him, the Court will
now further analyze the remaining substance of Count IV (Debt), which is the only claim in the
Intervenor Complaint seeking an award of interest on the sale proceeds.

422 Inits motion for summary judgment, FirstBank argues that (1) the foreclosure process does

not afford a third-party bidder the right to recover interest on sale proceeds disbursed to a judgment

* Additionally, as discussed, supra, at notes 31, 32, and 33, the Court finds that Joseph’s claims for replevin,
conversion and unjust enrichment, each fail on their own bases and would not provide grounds upon which the Court
could find Joseph was entitled to reimbursement of the principal amount.

35 The Court notes that within claim for Debt (Count IV) of Joseph’s Intervenor Complaint, he requests interest,
alleging “Defendant FirstBank is indebted to Plaintiff in Intervention in the amount of $1,705,000 00 plus interest at
the legal rate.” See Joseph’s Compl., at ] 44. However, within his prayer for relief, Joseph requests “interest accrued
on the auction proceeds at the legal rate, plus post judgment interest,” See Joseph’s Compl., at 12. Finally, within the
briefing for the instant motion for summary judgment, the parties appear to use “interest” and “prejudgment interest”
interchangeably. In the motion for summary judgment, FirstBank argues Joseph is not entitled to “interest.” See
FirstBank’s Mot. Sum. J. Additionally, Joseph specifically cites to 11 V.1-C. § 951({a), which governs the award of
prejudgment interest, requests “interest” on the funds from the date of the Supreme Court decision, April 24, 2017,
until August 15, 2018, and ultimately requests “prejudgment interest.” See Joseph's Opp., at 6-10. Despite the
interchangeable use of the terms “interest,” “prejudgment interest,” and ‘post judgment interest,” Joseph’s claim is
for interest that accrued between the date the V.I. Supreme Court issued its decision (April 24, 2017) and the date
FirstBank made restitution to Joseph (August 15, 2018).
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creditor and later returned after the sale is vacated, and (2) granting interest to Joseph for the period
of time FirstBank held the sale proceeds following the Supreme Court’s April 24, 2017, ruling
would be inequitable. FirstBank claims that Joseph participated in the Marshal’s Sale with
knowledge that his bid and potential payment would be subject to established procedures
governing the foreclosure and sale of property. FirstBank contends that Joseph “knew” it might
take time to acquire title to the property due to such procedures, and those delays were outside the
control of FirstBank. Therefore, FirstBank argues it should not be required to pay interest to Joseph
simply because there were delays in the underlying foreclosure process. FirstBank further claims
that Joseph was unharmed by the delay, since the funds he used were previously held in a checking
account paying “little or no interest.” FirstBank states that because Joseph failed to mitigate his
damages by collecting rents from the tenants of the disputed property, which could have resulted
in a return on his investment. Finally, FirstBank claims that because Joseph became disinterested
in the property following the sale, due to the encroachments discovered in the survey he completed,
Joseph ended up in a better position when he was reimbursed for his purchase than if he had
acquired title to the properties.

{23 In his opposition, Joseph contends he is still entitled to interest on the sale proceeds,
pursuant to 11 V.I.C. § 951(a)(1) and/or 11 V.LC. § 951(a)(2), and that an award of interest would
be equivalent to prejudgment interest because the funds were retained by FirstBank “beyond a
reasonable time without the owner’s consent.”?° Joseph concedes that FirstBank initially obtained

lawful possession of the sale proceeds when the Superior Court tendered the sums to FirstBank;

3611 V.LC. § 951(a) states “The rate of interest shall be nine (9%) per centum per annum on— (1) all monies which
have become due; (2) money received to the use of another and retained beyond a reasonable time without the owner's
consent, either express or implied.”
FirstBank Puerto Rico v. Webster et al.

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however, Joseph claims the Supreme Court’s April 24, 2017 decision vacating all dispositive
rulings from the Superior Court includes the confirmation of Marshal’s Sale from February 24,
2017, and thereby vacated the Marshal’s Sale, which effectively entitled Joseph to a return of his
funds immediately. Therefore, Joseph claims he is entitled to interest commencing from April 25,
2017— the day after the Supreme Court opinion issued—through and including August 14, 2018—
the day before FirstBank ultimately reimbursed Joseph of the full amount paid at the Marshal’s
Sale. He argues the Supreme Court mandate rendered FirstBank’s possession of the proceeds
unlawful as the case could not proceed to mediation as long as FirstBank had possession and
control of the sale proceeds, but that FirstBank did not immediately tender the funds. To support
that argument, Joseph points to the Superior Court Order dated March 5, 2018, that stated, “to
allow FirstBank to keep possession of the bid funds . . . prior to the parties returning to mediation
runs diametrically opposed to the Supreme Court’s mandate” and that “were this Court to proceed
as FirstBank suggests and the Court allowed FirstBank to keep the funds while the matter goes
back to mediation, FirstBank would be in an even stronger position than when it last mediated the
matter as it would then have the funds from the sale in its possession.”*’ Finally, Joseph contends
that FirstBank received tangible benefits, such as the use of Joseph’s funds and the actual or
constructive earning of interest on those funds, beginning April 25, 2017. Therefore, Joseph claims
he is entitled to the statutory rate of prejudgment interest of nine percent (9%) per centum per

annum.

37 See Order, entered March 5, 2018. However, the Court must point out that had Joseph already obtained the Deed
from OVIM when the final judgment was vacated, Joseph likely would not have been able to overturn the sale, and
FirstBank would likely have been required to put the funds in the registry of the Court while the parties retumed to
mediation.
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24 In its reply, FirstBank argues the award of interest would be inappropriate and result in a
windfall for Joseph. FirstBank argues that the statute Joseph cites, 11 V.I-C. § 951, does not allow
for an award of interest on tort claims. FirstBank contends that when Joseph paid the balance of
the purchase price, he “knew” an appeal was pending. Further, FirstBank emphasizes that Joseph
conducted no due diligence and sought no legal advice before bidding at the Marshal’s Sale or
paying the Cashier. FirstBank reiterates that Joseph ended up in a better position, having been
reimbursed the sale proceeds rather than possessing the property on which he discovered numerous
unforeseen encroachments after his purchase. Further, given that Joseph used funds from his
checking account, had he left the funds in his account, he would not have received nine percent
(9%) interest.

425 The V.I. Supreme Court’s decision did not address the Marshal’s Sale that had already
occurred. But in the 2018 Opinion, this Court performed a Banks analysis resulting in the
determination that a subpart of §74 of the Restatement (First) of Restitution and Unjust Enrichment
is the best rule for the Virgin Islands. Webster, 

, at *7 (quoting RESTATEMENT
(FIRST) OF RESTITUTION: PROCEDURE § 74 cmt. i).2® The Court adopted this rule and found that
Joseph was entitled to the return of his funds, but the Court did not make the determination of
whether Joseph is entitled to interest on those funds. /d. at *6 n.16 (stating “certainly, there are . .
. issues that will require further consideration by the Court, such as Joseph's claims for interest on

the money FirstBank has in its possession . . . [which is among the] issues would be present in any

38 Specifically, the Court adopted cmt. i of §74, which states:

A person, other than the judgment creditor or his attorney, who purchases at a valid execution sale upon a
judgment which is not void but which is subsequently reversed is entitled to retain the subject matter if,
before reversal, he has obtained the legal title and has paid value therefor.
FirstBank Puerto Rico v. Webster et al.

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event because of the delay between the judicial sale and now, which are partially the result of the
unusual circumstances and facts of this case.”).

926 After considerable research, the Court could find no law to support Joseph’s claim for
interest. The statutory scheme for property foreclosures, set forth in 5 V.L.C. § 23 and 28 V.LC. §
43, contains no provision requiring an award of interest to a third-party buyer, such as Joseph in
this litigation. Neither did the formal Terms of Sale issued by OVIM for the subject sale. Although
the Court adopted a subpart of §74, of the Restatement (First) of Restitution and found that Joseph
was entitled to reimbursement of the purchase funds, the Court finds no provision in the
Restatements of Restitution nor Restatements of Judgments to support an award of interest under
the facts before the Court. Indeed, the Restatement of Restitution specifically states this is not an
area it generally covers and points the reader to statutory schemes.”

27 ~~ Joseph relies upon 11 V.LC. § 951(a)(1) and/or 11 V.LC. § 951(a)(2) to support his claim
for interest. Section 951(a) states ““The rate of interest shall be nine (9%) per = per annum
on— (1) all monies which have become due; (2) money received to the use of another and retained
beyond a reasonable time without the owner's consent, either express or implied.” However, in

response, FirstBank cites to a Superior Court case which held that 11 V.LC. § 951 is not a proper

* Restatement (Third) of Restitution and Unjust Enrichment § 18, Judgments Subsequently Reversed or Avoided
includes numerous comments to this effect. For example, cmt. a states, inter alia, “[RJules governing judicial sales
tend to arise in specialized commercial settings, notably foreclosure and bankruptcy, where they are the subject both
of extensive statutory regulation and of detailed treatment by more specialized authorities.” Cmt. f includes, inter alia,
“[I]t is important to note that the various incidents of an execution sale are frequently regulated by statute, and that
some statutes provide broader protection to purchasers than do the rules of common law.”

Restatement (Third) Of Restitution and Unjust Enrichment § 53, Use Value, Proceeds, Consequential Gains, also
contains similar language. For example, cmt. e, states that “Because the availability of prejudgment interest is
extensively regulated by local statute and decisional law, the reader’s initial recourse, in addressing any issue of
supplemental enrichment that might be so characterized, must be to the local authorities.” That comment further states,
“The law of the various U.S. jurisdictions concerning the availability of prejudgment interest is outside the scope of
this Restatement.”
FirstBank Puerto Rico v. Webster et al.

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mechanism for seeking prejudgment interest arising from a non-contractual action—«.g., the sale
of the collateral—because the language does not implicate the assessment of damages against a
tortfeasor for injuries committed upon an unwilling victim. Bank of Nova Scotia v. Four Winds
Plaza Corp., 56 V.1. 45, 57 (V.I. Super. Ct. 2012). FirstBank also cites a case that held section
951(a) is not a proper mechanism for seeking prejudgment interest arising from a non-contractual
tort. Bookworm, Inc. v. Tirado, 

 (V.I. Super Ct. 2002). Bookworm, Inc. v, Tirado
expounded that “the language that . . . interest may be awarded either for all monies that have
become due or where there is a contract with an unspecified rate term implicates the relationship
among parties who are bound by either an explicit or implicit contract, not the assessment of
damages against a tortfeasor for injuries committed upon an unwilling victim.” /d.

q28 Similar to Bank of Nova Scotia v. Four Winds Plaza Corporation, in the instant matter, the
issue arises from the sale of collateral. Further, and perhaps more importantly, the Court finds it
indisputable that FirstBank did not withhold funds from Joseph after they had become due, nor did
it hold the funds beyond a reasonable time, adhering to the deadline imposed by the Court in the
2018 Opinion and corresponding order. The Court finds FirstBank did not contribute to the delays
in the matter, nor the reversal of the judgment against the Websters, and FirstBank reimbursed
Joseph within the time allotted in the 2018 Opinion. The Court finds that FirstBank did not retain
the funds beyond a reasonable time without the owner's consent, as required by 11 V.1.C. §

951(a){2), because it paid the funds within the Court’s deadline. Based upon these Virgin Islands

*. The Court recognizes that FirstBank did not immediately refund the purchase money to Joseph as ordered in the
March 5, 2018 Order, but it did immediately file a motion for reconsideration and asked the court to stay enforcement
of the March 5, 2018 Order. On June 7, 2018, the Court granted FirstBank’s motion to stay enforcement of the March
5, 2018 Order. The Court eventually upheld the order for a refund by order and opinion entered July 18, 2018, and
FirstBank met the deadline set forth therein to refund to funds to Joseph.
FirstBank Puerto Rico v. Webster et al.

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cases and the facts of this case, the Court finds that § 951 does not provide a mechanism for Joseph
to recover interest from FirstBank.

429 Even under the common law definition of debt, the Court finds Joseph has not met his
burden to prove his entitlement to interest on the sale proceeds. Under Virgin Islands common
law, an action for debt requires the plaintiff to demonstrate that (1) the defendant owes a certain
amount and (2) the defendant is or should be obligated to pay that amount. Greenleaf Commons,
LEC, 

 ¥ 9. The Court finds that FirstBank lawfully acquired the proceeds of the
Marshal’s Sale at the time the sale was confirmed. The Supreme Court decision did not address
the Marshal’s Sale and the redemption period had not expired when the Supreme Court issued its
decision. While this Court has determined that Joseph prevailed on his claim for debt with respect
to the return of the principal amount of sale proceeds, the Court finds that FirstBank did not act
improperly under the decisions made by this Court or the V.I. Supreme Court. The complexity of
this matter, as well as the unique fact pattern, yielded an extensive timeline of litigation, over
which neither party had any control. FirstBank returned the funds to Joseph within the time allotted
by this Court, and there is no basis to award interest for any other reason. Having rendered 11
V.LC. § 951 inapplicable, the Court finds there is no mechanism under which the Court could
determine an amount due.*!

q30 The Court finds there was no intentional wrongful action on the part of FirstBank, but the

delays of the parties and the time necessary for the Court to conduct the Banks analysis, contributed

4! Significantly, had the OVIM tendered title to Joseph before the Supreme Court decision was issued, Joseph would
likely have been required to retain title and would not have been entitled to restitution, Webster, 

,
at *7 (adopting RESTATEMENT (FIRST) OF RESTITUTION: PROCEDURE § 74 cmt. i). If the latter occurred, FirstBank
would have likely been required to deposit the funds into the registry of the Court while the parties returned to
mediation.
FirstBank Puerto Rico v. Webster et al.

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to a delay in the opinion substantiating the earlier order granting Joseph’s motion for a return of
the funds.*? As such, the Court finds that FirstBank did not act wrongfully nor was there an
unreasonable delay in making restitution to Joseph, once the Court entered its 2018 Opinion.
Accordingly, considering the circumstances of this unique case, the Court finds there are no
disputed material facts with respect to the entitlement of interest on the sale proceeds, and it will
grant FirstBank’s motion for summary judgment with respect to Joseph’s claim for interest in
Count IV, Debt.
CONCLUSION

931 The Court finds that Joseph is not entitled to interest under Counts I, II, or V (Replevin,
Conversion, and Unjust Enrichment, respectively), and those claims are no longer live for the
purpose of restitution of the principal amount of sale proceeds, since Joseph has already received
reimbursement therefor. So, the Court will grant summary judgment on Counts I, II, and V with
respect to FirstBank. Further, the Court need not address Count III (Accounting), as it does not
apply to FirstBank in the Intervenor Complaint. The Court will grant summary judgment on the
portion of Count IV (Debt) that seeks interest on the sale proceeds. However, the Court will deny
summary judgment on the portion of Count 1 V (Debt) that seeks restitution of the principal amount.
Because the parties did not address Count VI (Punitive Damages), the Court does not address it
herein, but for purposes of completeness, the Court will deny the motion for summary judgment

on the claim for punitive damages.

*® Of less significance, Joseph did not have the funds in an interest-bearing account before he purchased the property,
so the Court cannot find he lost profits or proceeds on those funds. In addition, his claim for an accounting from the
Websters is still pending, and that claim could potentially compensate him for the loss of the use of his money.
FirstBank Puerto Rico v. Webster et al.

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An order consistent herewith will immediately follow.

“/
DATED: June /S , 2023 See CZ Alfa thecx

Kathleen Mackay “
Judge of the Superior Court
ATTEST: of the Virgin Islands
TAMARA CHARLES

Clerk of the Court

{ty LATOYA CAMACHO

Court Clerk Supervisor Olo/ 15 /Q3_