IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX



BANCO POPULAR DE PUERTO RICO,



PLAINTIFF, SX-16-CV-014



V. ACTION FOR DEBT AND

FORECLOSURE OF REAL



JEAN CHARLES A/K/A JEAN PATRICIA PROPERTY MORTGAGE

GEORGE A/K/A JEAN GEORGE AND

WINSBERT CHARLES,



DEFENDANTS.



MEMORANDUM OPINION



THIS MATTER came before the Court on Plaintiff Banco Popular de Puerto Rico’s

(hereinafter “Plaintiff’) motion for default judgment against Defendant Jean Charles a/k/a Jean

Patricia George a/k/a Jean George (hereinafter “George”) and Defendant Winsbert Charles

(hereinafter “Charles”), filed on July 1, 2016.



BACKGROUND



On January 15, 2016, Plaintiff commenced an action for debt and foreclosure against

Defendants in connection with the real property described as Plot 357 of Estate William’s Delight,

Prince Quarter, St. Croix, U.S. Virgin Islands (hereinafter “Subject Property”). In its complaint,

Plaintiff alleged the following:



Defendants are titleholders of record of the Subject Property. (Compl. ¢ 4) On August 21,

2009, Defendants executed and delivered to Plaintiff a promissory note obligating them to

pay the principal amount of $112,000.00, together with interest at the rate of 5.25% per

annum. (Id., at§5) To secure payment of the promissory note, Defendants executed and

delivered to Plaintiff a first priority mortgage dated August 21, 2009. (Id., at J 7) On or

about September 1, 2015, Defendants defaulted under the promissory note and the

mortgage—namely, monthly installments of principal and interests became due pursuant to

the promissory and were unpaid. (Id., at J] 9-10) Despite Plaintiff's notice of default to

Defendants, to date, the default has not been cured and Defendants remain in default under

the promissory note and the mortgage. (Id., at {J 11-14) Pursuant to the promissory note

and the mortgage, Plaintiff elected that the whole principal sum with all unpaid accrued

interest to be immediately due and payable. As of December 23, 2015, Defendants owes

Plaintiff a total amount of $100,892.52 under the promissory note—to wit: $98,728.66

(principal), plus $2,040.18 (accrued interest), plus $123.68 (late charges)—with interest

accruing after December 23, 2015 at the rate of $14..29 per diem. (Id., at J 19)

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MEMORANDUM OPINION



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As such, Plaintiff sought to collect its debt from Defendants and foreclose its lien on the

Subject Property. When Defendants failed to file a response to Plaintiff's complaint, Plaintiff filed

a motion for an entry of default. The Court granted Plaintiff's motion and an entry of default was

entered against each Defendant on March 22, 2016. On July 1, 2017, Plaintiff filed this instant

motion for default judgment against Defendants. To date, Defendants have not filed a response to

Plaintiff's motion.



STANDARD OF REVIEW



Entry of default and default judgment are separate matters under Superior Court Rules 47

and 48. In King v. Appleton, 61 V.I. 339, 346 (V.I. 2014), the Supreme Court of the Virgin Islands

(hereinafter, “Supreme Court’) instructed that “after entering the default, the Superior Court must

consider whether the unchallenged facts constitute a legitimate cause of action, since a party in

default does not admit mere conclusions of law.” (internal quotations omitted). The Supreme Court

explained that a defendant, “by his default, admitted the plaintiff's well-pleaded allegations of fact,

[he] is concluded on those facts by the judgment, and is barred from contesting the facts thus

established.” Jd In other words, a defendant's default does not in itself warrant the court to enter a

default judgment. Jd. (“the mere fact of [the defendant’s] default did not entitle [the plaintiff] to the

entry of a default judgment against [the defendant]; instead, [the defendant’s] default only |

conceded the facts as alleged in [the plaintiff's] complaint”). Rather, “[t]here must be a sufficient

basis in the pleadings for the judgment entered.” Jd. Thus, if the court finds the facts, as alleged in

the plaintiff's complaint, constituted a valid cause of action under the Virgin Islands law, the court

is to hold a hearing to establish the amount of damages. Id.; see also, Appleton v. Harrigan, 61 V.I.

262, 269 (V.I. 2014) (after entry of default, damages generally must be established in an

evidentiary proceeding [where] the defendant is afforded the opportunity to contest the amount



claimed) (internal quotations and citations omitted).

Banco Popular de Puerto Rico v. Charles, et al.

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MEMORANDUM OPINION



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However, such a hearing is not required “[w]hen the plaintiff's claim against a defendant is

for a sum certain or for a sum which can by computation be made certain.” Harrigan, 61 V.I. at

270 (citing Super. Ct. R. 48(a)(1)). The Supreme Court explained that, “[a] claim is not a sum

certain unless there is no doubt as to the amount to which a plaintiff is entitled as a result of the

defendant's default.” (citation omitted). Harrigan, 61 V.1. at 270. In Harrigan, the Supreme Court

found the damage claimed therein—namely, unpaid rent—did not qualify as a sum certain because

sum certain for the purposes of Superior Court Rule 48 “contemplates a situation in which, once

liability has been established, there can be no dispute as to the amount due, as in actions on money

judgments and negotiable instruments.” Jd. (internal quotations and citation omitted).



DISCUSSION



I. Whether Plaintiff is Entitled to a Judgment by Default



The Court will first determine whether the facts, as alleged in Plaintiffs complaint,

constitute a legitimate cause of action. According to Plaintiffs complaint, Defendants executed

and delivered to Plaintiff a promissory note in the amount of $112,000.00 on August 21, 2009

(hereinafter, “Promissory Note”). (Compl. 45) To secure their obligations under the Promissory

Note, Defendants executed and recorded a first priority mortgage on the Subject Property in favor

of Plaintiff on August 21, 2009 (hereinafter “Mortgage). (id., at 9 7) Plaintiff alleged that, despite

Plaintiffs notice of default to Defendants, to date, the default has not been cured and Defendants

remain in default under the Promissory Note and the Mortgage. (Id., at ff 11-14) In support of its

allegations, Plaintiff submitted, inter alia, a copy of the deed evidencing that Defendants are

titleholders of the Subject Property, a copy of the executed Promissory Note, and a copy of the

executed Mortgage. Based on the foregoing, the Court finds that these unchallenged facts

constitute a legitimate cause of action for debt.



The Court must now determine whether a hearing is necessary to establish the amount of



damages. Here, Plaintiff submitted the affidavit of Josephine Williams, Assistant VP and

Banco Popular de Puerto Rico v. Charles, et al.

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MEMORANDUM OPINION



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Collection Department Manager of Plaintiff, in support of its motion for default judgment.

Josephine Williams stated in her affidavit that Defendants defaulted in the payment of the principal

and interests pursuant to the Promissory Note, in the total amount of $103,693.88 as of June 24,

2016—to wit: $98,728.66 (principal), plus $4,646.02 (accrued interest), plus $309.20 (accrued late

charges), and plus $10.00 (statement fee)—with interest accruing at the rate of $14.12 per diem

thereon. Additionally, Plaintiff also submitted a one-page computer printout, which appear to

reflect the payoff calculation in connection with Defendants’ account with Plaintiff.! The computer

printout indicated that the total amount past due is $104,862.38—1o wit: $98,728.66 (principal),

plus $4,646.02 (accrued interest), plus $309.20 (accrued late charges), plus $10.00 (statement fee),

plus $1,168.50 (attorney’s fees and costs). Josephine Williams noted in her affidavit, “[t]he sum of

$1,168.50 was subtracted from the total pay-off of $104,862.38... [because] [t]his sum represents

attorney’s fees and costs incurred as of June 9, 2016, which will be awarded at the Court’s

discretion.” (Josephine Aff.) After deducting $1,168.50 from $104,862.38, the total amount past

due as of June 24, 2016 is $103,693.88. Based on the foregoing, the Court finds Plaintiff's claim

for the total amount owed under the Promissory Note qualifies as a sum certain because “there is no

doubt as to the amount to which [Plaintiff] is entitled as a result of [Defendants’] default.”

Harrigan, 61 V.I. at 270. In other words, the Court finds that there can be no dispute as to the

amount due under the Promissory Note. Thus, a hearing is not necessary to establish the amount of

damages in this matter.



In addition to Plaintiff's request for a judgment in the amount of $103,693.88, with interest

accruing at the rate of $14.12, Plaintiff also requested for a judgment of foreclosure upon the

Subject Property. However, Plaintiff failed to submit a copy of the title search of the Subject

Property. Thus, the Court cannot discern whether Plaintiff's interest in the Subject Property is in



’

fact senior and superior to all others who have interests in the Subject Property. As such, the Court



' The computer printout referred to the account of “Jean/Winsbert Charles.”

Banco Popular de Puerto Rico v. GAaRu_S, jer al.

SX-2016-CV-€44



MEMORANDUM OPINION



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will order Plaintiff to supplement its motion for default judgment with a certified copy of the title

search of the Subject Property.



II. Whether Plaintiff is Entitled to Attorney’s Fees and Costs



Plaintiff also filed an affidavit of its counsel, Attorney Samuel T. Grey of Nichols Newman

Logan Grey & Lockwood, PC, for attorney’s fees and costs, although no motion for the same

appears in the record. Pursuant to Virgin Islands Rule of Civil Procedure 54(d), the Court will

order Plaintiff to file a separate motion for attorney’s fees and costs “[w]ithin 30 days after the

entry of a final judgment or a judgment allowing costs.”



CONCLUSION



Based on the foregoing reasons, the Court will order Plaintiff to supplement its motion for

default judgment with a certified copy of the title search of the Subject Property. The Court will

reserve entering a judgment in this matter until after receipt of the title search. Furthermore, the

Court will also order Plaintiff to file its request for attorney’s fees and costs in a separate motion in

compliance with the Virgin Islands Rule of Civil Procedure 54. An Order consistent with this



Memorandum Opinion will follow.



DONE and so ORDERED this “a uth

ATTEST: 4] KL



Estrella H. George HAROLD W.L. WILLOCKS

Clerk of the Court ‘ ssenoe Judge of the Superior Court



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