SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
SIWELL INC D/B/A CAPITAL Civil No SX 2020 CV 223
MORTGAGE SERVICES OF TEXAS ACTI0N FOR DEBT AND
PLAINTIFF FORECLOSURE 0F MORTGAGE
V0
NILSA IVALISSE ROUGH AND BLANCHE CITE AS 2022 V‘ SUPER LQA—
D ROUGH AS TRUSTEES OF THE NILSA
P ROUGH REVOCABLE TRUST AND
EDEN EAST PROPERTY OWNERS
ASSOCIATION INC
DEFENDANTS
Appearances
Diana Coada, Esq
Rogers Townsend, LLC
Charlotte, North Carolina
St Thomas, U S Virgin Islands
For Plamnfszwell Inc
Earnesta L Taylor, Esq
McChain Hamm St Jean, LLP
St Croix, U S Virgin Islands
For Defendant Nilsa Ivalisse Bough
and Defendant Blanche Bough as
Trustees ofthe Nilsa P Bough
Revocable Trust
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
' 1 THIS MATTER came before the Court on Plaintiff Siwell Inc d/b/a Capital Mortgage
Services of Texas’ (hereinafier “Plaintiff”) motion for service by publication for Defendant Eden
East Property Owners’ Association (hereinafter “Eden East”), filed on March 13, 2022
BACKGROUND
'2 On February 10, 2020, Plaintiff filed a complaint against Defendant Nilsa Ivalisse Bough
and Defendant Blanche Bough as Trustees of the Nilsa P Bough Revocable Trust (collectively
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hereinafter ‘ Trustees ) and Defendant Eden East in an action for debt and foreclosure of mortgage
In the complaint, Plaintiff alleged, inter alia (i) the following real property was distributed to
Defendants Trustees as trustees of the Nilsa P Bough Revocable Trust Plot No 92 of Estate
Catherine 5 Hope EastEnd Quarter B,St Croix U S Virgin Islands (hereinafter Property ) (ii)
the Property is subject to a first priority mortgage in favor of Plaintiff and (iii) Defendant Eden
East may claim subordinate liens upon or legal interest in the Property by virtue of several
notices of lien it filed and recorded against said real property (Compl) Various documents
including notices of liens Defendant Eden East filed and recorded against the Property were
attached as exhibits to the complaint
‘1! 3 Defendant Trustees were served and on April 30 2020 they filed an answer in response to
Plaintiff’s complaint
‘14 On May 26, 2020 Plaintiff filed an affidavit of process server Darwin D Dowling
(hereinafter Dowling’ ) regarding the service of Defendant Eden East In Dowling s affidavit he
indicated that [a]fter due search careful inquiry and diligent attempts was unable to serve on
[Defendant Eden East] and that attempts were made on April 7 2020 April 14 2020 April 15
2020 April 20 2020 and April 21 2020
‘l[ 5 On October 27 2021 Robert P Wood Esq of Roger Townsend LLC and Diana Coada
Esq of Rogers Townsend LLC, filed a stipulation for substitution of counsel of record for Plaintiff
According to the stipulation Diana Coada Esq is substituted in as counsel of record for Plaintiff
and the substitution is an intra firm transfer (Stip )
‘l[ 6 On March 13 2022 Plaintiff filed this instant motion
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STANDARD OF REVIEW
<ll 7 Rule 4 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 4 ) governs
summons and service of process Unless service is waived proof of service must be made to the
court VI R CIV P 4(m) see also Title 5 V I C § ll4(a) ' The “service of process unless
waived by a general appearance is a prerequisite to the Superior Court obtaining personal
jurisdiction over a defendant ” McKenzie v Hess 011 VI Corp 70 VI 210 215 (Super Ct
March 6 2019) (quoting Ross v Hodge 58 V I 292 3| 1 n 22 (V I 2013) (quoting Joseph v Daily
News Pub Co Inc 57V[ 566 580n4(VI 2012))) seeVI R Ctv P 4(l)(i) Rule4mandates
that, “[ilf a defendant is not served within 120 days after the complaint is filed the court on
motion or on its own after notice to the plaintiff must dismiss the action without prejudice against
that defendant or order that service be made within a specified time[, b]ut if the plaintiff shows
good cause for the failure the court must extend the time for service for an appropriate period
VI R Ctv P 4(m) see also Ross 58 VI at 310( In general actual notice of a law suit is not a
substitute for proper service and absent proper service a case must be dismissed for lack of
1Title 5 V IC § 114 provides
§ 114 Proof otservice oi grocess
(a) Proof of the service 01 the summons and complaint or 01 the deposit thereot in the post ottice shall be as
follow$
(I) If the service or deposit in the post ottice is by the marshal or his deputy the certificate of such
officer
(2) It by any other person his attidavit thereof
(3) In case of publication the affidavit of the publisher or his representative together with a copy
at the publication or
(4) The written admission oi the defendant
VI R ClV P 4provides
(l)Territorial Limits of Effective Service
Serving a summons and complaint or filing a waiver of service satisfies the obligation of service of
process sutficient to establish personal jurisdiction over a defendant
(1) who is subject to personal jurisdiction in the Superior Court in the Virgin Islands or
(2) when authorized by statute
VI R CIV P 4(l)(i)
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personal jurisdiction over the defendant ) (citation omitted) However a court must consider
whether good cause exists to extend the 120 day period for service before the court may dismiss a
complaint against a party for lack of service Ross 58 VI at 310 see VI R CIV P 4(n) ‘Even
if the court finds that no good cause exists to warrant an extension, the court must at least consider
whether any other factors warrant a discretionary extension Ross 58 V I at 310 l 1
(II 8 Rule 4 I of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 4 l ) governs
service by publication Rule 4 1 provides that [w]hen service of the summons and complaint
cannot be made as prescribed in Rule 4 and the requirements set forth in 5 V IC § 112(a) for
obtaining substituted service by publication are established by affidavit and the prerequisites
stated in that statute are satisfied the court may grant an order that service be made by publication
in accord with the provisions of that statute VI R CIV P 4 I(a) Title 5 V IC §
1|2(a) provides in pertinent part that service by publication is proper [w]hen service of the
summons cannot be made as prescribed in Rule 4 [] and the defendant after due diligence cannot
be found within the Virgin Islands Title 5 V I C § 1 12(a)
DISCUSSION
‘][ 9 In its memorandum in support of its motion Plaintiff argued that Plaintiff ‘has satisfied
the legal requirements for service by publication on Defendant Eden East (Memo p 1 )Plaintiff
made the following assertions in support of its argument (i) [n the instant case the defendant
could not be located and service cannot be made as prescribed by Rule 4 (Id ) (ii) Plaintiff
attempted to serve [Defendant Eden East] at the last known address but could not locate the
defendant (Id) (iii) Further attempts to contact by phone were unsuccessful (Id) and (iv)
Plaintiff has searched property records obituaries and other on line databases but despite due
diligence Plaintiff has been unable to obtain the current address or whereabouts of [Defendant
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Eden East] (Id at pp 1 2 ) A copy of an affidavit of Diana Coada Esq counsel of record for
Plaintiff dated February 7 2022, was attached to motion and memorandum in support thereof
‘1[ 10 There are several issues the Court will address along with Plaintiff’s motion for service by
publication for Defendant Eden East
1 October 27, 2021 Stipulation
‘][ l I The Court will grant the October 27 2021 stipulation for the intra firm substitution Diana
Coada Esq will be substituted in as counsel of record for Plaintiff
2 Extension of Time for Service
‘]l 12 Interestingly, Plaintiff never addressed the issue that over two years have passed since
Plaintiff filed its complaint and Defendant Eden East still has not been served Under Rule 4(n)
Defendant Eden East should have been served on or before June 9, 2020 or the court on motion
or on its own after notice to the plaintiff must dismiss the action without prejudice against that
defendant or order that service be made within a specified time V I R Clv P 4(n) Nevertheless
before the Court dismisses without prejudice the case against Defendant Eden East the Court will
consider whether good cause or any other factors warrant a discretionary extension
2 Standard of Review
‘l[ 13 In the context of service of process courts have considered three factors in determining
the existence of good cause (1) reasonableness of plaintiff‘s efforts to serve (2) prejudice to the
defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to
serve prior to the expiration of the period prescribed by the rule McKenzie 70 V I at 216 (quoting
Charles v Woodley 47 V I 202 210 (Super Ct 2005) (quotation marks brackets and citations
omitted)) In all instances however it is the plaintiff‘s burden to show good cause Id (quoting
Beachstde Assocs LLC v Fishman 53 V I 700 713 (V I 2010)) As noted above, ‘[e]ven if the
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court finds that no good cause exists to warrant an extension the court must at least consider
whether any other factors warrant a discretionary extension Ross, 58 VI at 3l0 11, see also
Beachstde Assocs LLC 53 VI at 7l7 18 (“In other words the trial court has discretion as to
whether it will ultimately grant or deny a permissive extension under FRCP 4(m) but the court
lacks discretion to refuse to at least consider the appropriateness of such an extension ) [C]ourts
must consider a discretionary extension when the statute of limitations bars the filing of a new
complaint McKenZIe 70VI at218 (citing Beachszde Assocs LLC 53 VI at7l8 Nevertheless
the Court can still ‘ deny a discretionary extension of time even if the statute of limitations would
bar a plaintiff from re filing its claims Id (citing Petrucellt 46 F 3d at 1306 Boley v Kaymark
123 F 3d 756 759 (3d Cir 1997)»
(ll 14 Regarding the first factor of the good cause analysis the reasonableness of Plaintiff‘s
efforts to serve although Plaintiff was diligent in its initial effort to serve Defendant Eden East
in April 2020 no further efforts were made until now almost two years later, when Plaintiff filed
a motion for service by publication Thus this factor does not support a finding of good cause
Regarding the second factor the prejudice to Defendant Eden East by lack of timely service
the Court has no information to consider here because Defendant Eden East has not appeared or
filed anything in this matter The Court is left to speculate how the delay would be prejudicial
Thus, this factor is neutral Regarding the third factor whether Plaintiff moved for an
enlargement of time to serve prior to the expiration of the period prescribed by the rule Plaintiff
never moved for an extension of time to serve Defendant Eden East Thus this factor does not
support a finding of good cause Having considered all the factors and finding two factors weighing
against finding of good cause and one factor neutral the Court cannot find good cause for
Plaintiff’s failure to serve Defendant Eden East See McKenzie 70 V I at 218 (quoting Beachszde
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Assam LLC 53 VI at 713 (quoting MCI Telecomms Corp v Teleconcepts Inc 71 F 3d 1086
1097 (3d Cir l995))) ( [T]he absence of prejudice alone can never constitute good cause to
excuse late service Instead, prejudice may tip the good cause scale [but] the primary focus is on
the plaintiff‘s reasons for not complying with the time limit in the first place ) However, the
Court 3 analysis does not end here the Court must determine if there are other factors that may
warrant an extension
‘|[ 15 Here Defendant Eden East as the holder of subordinate liens upon or legal interest in
the Property is required to be made a defendant in this foreclosure action under Title 28 V I C §
532 ‘ At this time in the interest of judicial efficiency rather than dismiss without prejudice the
case against Defendant Eden East and have Plaintiff re file against Defendant Eden East or moving
to join Defendant Eden East as a required patty ‘ the Court will grant a discretionary extension of
time for Plaintiff to serve Defendant Eden East Plaintiff is cautioned that further delay in service
may result in the dismissal of this case against Defendant Eden East
3 Motion for Service by Publication
‘|[ 16 Rule 4(h) governs service of a corporation partnership or association and Rule 4(h)(3)
governs service when service cannot be made as prescribed in Rule 4(h) In its complaint Plaintiff
simply identified Defendant Eden East as Eden East Property Owners’ Association’ and did not
indicate Defendant Eden East’s entity type However a review of the notice of lien, recorded on
June 27 2007 and attached to the complaint as Exhibit G revealed that Defendant Eden East is a
corporation to wit ‘ Eden East Property Owners Association Inc ’ Rule 4(h)(3) provides that
3 Title 28 V l C § 532 provides that [a]ny person having a lien subsequent to the plalntttt upon the same property
or any part thereof, or who has given a promissory note or other personal obligation tor the payment of
the debt or
any part thereof secured by the mortgage or other lien which is the subject of the action shall be made a
defendant in
the action Title 28 V I C § 532
4 Assuming without deciding that re filing or moving to join are viable options here
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[i]f legal process against a corporation limited liability company, partnership or other association
cannot by due diligence be served upon any person authorized to receive it such process including
the complaint, may be served in duplicate upon the Lieutenant Governor pursuant to Title 13 of
the Virgin Islands Code, which service shall be effective for all purposes of law V I R CIV P
4(h)(3) see also Title 13 V I C § 348 ( In case legal process against a corporation cannot by due
diligence be served upon any person authorized to receive it, such process including the complaint
may be served in duplicate upon the Lieutenant Governor, which service shall be effectual for all
purposes of law ) There is no record that Plaintiff attempted to effectuate service upon Defendant
Eden East via the Lieutenant Governor As such there lacks sufficient evidence that “service of
the summons and complaint cannot be made as prescribed in Rule 4 and the requirements set forth
in 5 V I C § 1 12(a) Accordingly it is not proper for Defendant Eden East to be served by
publication at this juncture and the Court will deny Plaintiff’s motion for service by publication
for Defendant Eden East The Court will order Plaintiff to file proof of service advising the Court
that Plaintiff has complied with Title 13 V IC § 348 and Defendant Eden East has been served
via the Lieutenant Governor
4 Amend Caption
‘II 17 Pursuant to Rule 15 2 of Virgin Islands Rules of Civil Procedure 5 the Court will amend
the caption to reflect Defendant Eden East 5 entity type
5 Rule 15 2 of Virgin Islands Rules of Civil Procedure provides that [t]he court may amend any process or pleading
for any omission or defect therein or for any variance between the complaint and the evidence adduced at the trial
VI R CW P 15 2
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CONCLUSION
Based on the foregoing it is hereby
ORDERED that the October 27 2021 stipulation for substitution of counsel of record for
Plaintiff is GRANTED Diana Coada Esq shall be and is hereby the counsel of record for
Plaintiff
ORDERED that a DISCRETIONARY EXTENSION of time for Plaintiff to serve
Defendant Eden East is GRANTED The deadline for Plaintiff to serve Defendant and file the
proof of service thereto is extended to April 15, 2022 It is further
ORDERED that on or before April 15, 2022 Plaintiff shall file proof of service advising
the Court that Plaintiff has complied with Title 13 V I C § 348 and that Defendant Eden East has
been served via the Lieutenant Governor Plaintiff is notified that failure to comply may result in
the dismissal of this case against Defendant Eden East It is further
ORDERED that Plaintiff’s motion for service by publication for Defendant Eden East
filed on March 13 2022 is DENIED And it is further
ORDERED that the CAPTION IS AMENDED to reflect Defendant Eden East Property
Owners Association Inc in place of Defendant Eden East Property Owners Association ’ and
all future filings shall so reflect “k
DONE and so ORDERED this (93 day of March 2022
ATTEST W& >(M
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
Court C16 '72“
Dated Q 90 a
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
SIWELL INC. DBA CAPITAL MORTGAGE Case Number: SX-2020-CV-00223
SERVICES OF TEXAS, Action: Debt And Foreclosure
Plaintiff
v.
NILSA I BOUGH et al,
Defendant.
NOTICE of ENTRY
of
Memorandum Opinion and Order
To: Diana Coada, Esq. Earnesta L. Taylor
Please take notice that on March 23, 2022
a(n) Memorandum Opinion and Order
dated March 23, 2022 was/were entered
by the Clerk in the above-titled matter.
Dated: March 23, 2022 Tamara Charles
Clerk of the Court
By:
Janeen Maranda
Court Clerk II