IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN REKKEERE CITIMORTGAGE, INC., ) ) Plaintiff, ) CASE NO. ST-07-CV-456 ) Vv. ) ACTION FOR DEBT AND ) FORECLOSURE OF REAL LISETTE MANNING a/k/a LISETTE H. +) PROPERTY MORTGAGE MANNING and RICK BERRY, ) ) Defendants. ) ) RICHARD P. FARRELLY, ESQ. LISETTE MANNING Birch, de Jongh & Hindels, PLLC a/k/a LISETTE H. MANNING Poinsettia House at Bluebeard’s Castle 1080A Creeks Cross Road 1330 Estate Taarnebjerg Kohler, WI 53044 St. Thomas, VI 00802 Pro Se Attorneys for Plaintiff RICK BERRY CHRISTIAN, ADAM G.,, Judge Lerkenlund 6A-1-A-2 St. Thomas, VI 00802 Pro Se MEMORANDUM OPINION (Filed: July 7, 2011) This matter is before the Court on Plaintiff's “Motion for Order Confirming Sale” by which it seeks an order of this Court confirming the May 19, 2010 Marshal’s Sale of certain real property in St. Thomas, Virgin Islands. Based on the record, the Court is constrained to deny Plaintiff's motion. I. Factual and Procedural Background. Plaintiff initiated this action on September 6, 2007, seeking a judgment against Defendant Lissette Manning for debt for unpaid amounts due under a promissory note, and foreclosure of a corresponding mortgage lien on certain real estate. The real property at issue is Parcel No. 8-56- 3 Estate Nazareth, No. 1 Red Hook Quarter, St. Thomas, U.S. Virgin Islands (“Subject Property”). On October 5, 2007, the complaint was amended to add Rick Berry, who asserted a construction lien against said property, as a junior lienholder as required by Virgin Islands law.' ! V.I. CODE ANN. tit. 28, § 532. Citimortgage, Inc. v. Lisette Manning a/k/a Lisette H. Manning, et al. Superior Court Case No. ST-07-CV-456 Memorandum Opinion On April 8, 2008, the Clerk of the Court entered defaults against both defendants pursuant to the rules of this Court.” On July 1, 2008, Plaintiff moved for default judgment, and a hearing on said motion was scheduled for September 18, 2008. Mr. Berry appeared at that hearing and requested time to obtain counsel to assist him in the pursuit of his claim against Ms. Manning. The Court indulged his request and continued the hearing to October 30, 2008. Then, by letter dated October 30, 2008, Mr. Berry advised the Court that he would no longer pursue his claims. The Court proceeded with the hearing and entered a judgment by default in favor of Plaintiff and against Defendant Lissette Manning for Five Hundred Thirty Two Thousand Two Hundred Twenty One Dollars and Eighteen Cents ($532,221.18) in principal, interest of Sixty Five Thousand Five Hundred Twenty Six Dollars and Twenty One Cents ($65,526.21), late charges of Three Thousand Eight Hundred Forty Eight Dollars and Sixty Eight Cents ($3,848.68), and Twenty Four Dollars ($24.00) for real property inspection fees. The Court also granted leave for Plaintiff to submit a request for costs and attorney’s fees incurred in the prosecution of this case. The oral judgment was reduced to writing on April 3, 2009, adding that post-judgment interest would accrue at four percent (4%). The written judgment also awarded Plaintiff costs and attorney’s fees of Two Thousand Two Hundred Dollars ($2,200.00). Importantly, however, the April 3, 2009 Default Judgment did not direct the foreclosure of Plaintiff's mortgage lien or the sale of the Subject Property. Moreover, the memorandum of proceedings from October 30, 2008, does not reflect that the Court orally ordered these forms of relief. On February 11, 2010, Plaintiff submitted a Praecipe requesting a writ of execution for the damages, attorney’s fees, and interest awarded via the April 3, 2009 Default Judgment. Plaintiffs Praecipe further requested foreclosure and sale of the Subject Property, notwithstanding that the Court had not entered any directive, written or oral, for such relief. On February 23, 2010, the Clerk of the Court issued a Writ of Execution which directed the Superior Court Marshal “‘...to satisfy the said Judgment in lawful money of the Virgin Islands of the United States out of personal belongings of said debtor...” in the total amount of Six Hundred Thirty Nine Thousand Nine Hundred Seventy Four Dollars and Ninety Seven Cents ($639,974.97). This Writ of Execution did not direct the sale of the Subject Property, although the property description appears in the bottom right corner of the document. Nevertheless, a Verified Return of Writ of Execution for Judicial Sale was executed by the Superior Court Marshal on June 9, 2010, noting that a sale of the Subject Property took place on May 19, 2010, at which time Plaintiff was the highest bidder, having bid the sum of Six Hundred Thirty Thousand Eight Hundred Fifty Two Dollars and Thirty Seven Cents ($630,852.37). Plaintiff has now filed the instant motion seeking an order confirming the May 19, 2010 Marshal’s sale of the Subject Property Il. Legal Analysis. This Court has subject matter jurisdiction over this civil action.? The statute governing the process for confirmation of a marshal’s sale of real property provides, in pertinent part, 2 SUPER. CT. R. 47 Citimortgage, Inc. v. Lisette Manning a/k/a Lisette H. Manning, et al. Superior Court Case No. ST-07-CV-456 Memorandum Opinion “(2) If such objections are filed, the court shall, within 30 days of the date of the sale, rule on such objections, or shall hear arguments on such objections and rule within 30 days of such hearing; otherwise the objections shall be deemed denied and notwithstanding such objections, the court shall allow the order confirming the sale, unless on the hearing of the motion it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting. In the later case, the court shall disallow the motion and direct that the property be resold, in whole or in part, as the case may be, as upon an execution received on that date.” Despite the language of 5 V.I.C. § 489, a court may entertain untimely objections if the interests of justice so require.” The decision of whether to confirm a marshal’s sale rests in the discretion of the trial court.° Notwithstanding that this is a default proceeding and no objections have been filed against the instant Marshal’s sale, the Court still has a duty to ensure that Plaintiff is entitled to the relief sought before granting the same.’ The issue confronting the Court in this matter is, notwithstanding that Defendant has not objected to the sale, the Court never entered a judgment of foreclosure in this civil action. Rather, the April 3, 2009 Default Judgment was solely for debt, and the writ of execution issued by the Clerk of the Court did not direct the sale of the Subject Property. Case law firmly indicates that an execution may not exceed the scope of the underlying judgment.® Because the judgment in this case did not direct the Subject Property to be sold, the subsequent writ of execution could not direct the Marshal to sell said property, as such a sale would be void.” In this matter, and consistent with Virgin Islands law and the afore-cited precedent, the February 23, 2010 Writ of Execution directed the Superior Court Marshal to, “.,.make the said sums due on accruing costs, to satisfy the said Judgment in lawful money of the Virgin Islands of the United States out of personal belongings of said debtor and make retum of this Writ within sixty (60) days after your receipt hereof, with what you have done hereon.” (Emphasis added). 4 V.LC. § 76(a). $ V.1.C. § 489. Lucerne Investment Co. v. Estate Belvedere, Inc., 7 V.I. 275, 278 (D.V.I. 1969). Christian v. All Persons Claiming any Right, Title, or Interest in Newfound Bay, 36 V.1. 279, 281, 962 F. Supp. 673, 675 (D.V.I. 1997). See also, DJBAS Living Trust v. Meinhardt, 755 N.W.2d 501, 503 (S.D. 2008) (noting that courts have broad equitable powers to set aside a foreclosure sale). ? See, Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168 (3rd Cir. 1990) (a trial court must determine whether movant is legally entitled to summary judgment, even when the motion is unopposed). 8 Bank One, N.A. v. Wohlfahrt, 193 S.W.3d 190, 194-195 (Tex. Ct. App. 2006) (“enforcement orders may not be inconsistent with the original judgment’); Bell v. Jones, 139 P.2d 884, 885 (Utah 1943) (“An execution or order of sale may not go beyond the terms of the judgment upon which it is based”). 9 Clint Independent School District v. Cash Investments, Inc., 970 S.W.2d 535 (Tex. 1998) (“It is essential that the sheriff act according to a valid judgment and order of sale ‘to confer on the sheriff the power to sell.’”). 3 vw & & an Citimortgage, Inc. v. Lisette Manning a/k/a Lisette H. Manning, et al. Superior Court Case No. ST-07-CV-456 Memorandum Opinion This Writ specifically directs the Marshal to pursue personal property and does not direct the sale of any real property whatsoever. Indeed, this is the only fashion in which to construe this Writ consistent with Section 473(1) of Title 5, Virgin Islands Code. This section provides, “The writ of execution shall be issued by the clerk and directed to the marshal. It shall contain the name of the court, the names of the parties to the action, and the title thereof. It shall substantially describe the judgment, and if it is for money, shall state the amount actually due thereon and shall require the marshal substantially as follows: (1) If it is against the property of the judgment debtor and the judgment directs particular property to be sold, it shall require the marshal to sell such property and apply the proceeds as directed by the judgment; otherwise it shall require the marshal to satisfy the judgment, with interest, out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of the real property belonging to him on which the judgment has become a lien as provided in section 425 of this title;’. (Emphasis added). Importantly, statutes authorizing execution on real property to satisfy judgments are strictly construed.'!° Nothing in the record before the Court indicates that the Marshal first attempted to satisfy the debt out of the personal belongings of the Defendant as directed by the Writ and required by 5 V.I.C. § 473(1). Rather, the June 9, 2010 Verified Return of Writ of Execution for Judicial Sale states that notice of the sale of the Subject Property was given for four (4) consecutive weeks in a newspaper of general circulation in the Virgin Islands, that the sale of the Subject Property occurred on May 19, 2010, at 10:30 a.m., and that Plaintiff was the prevailing bidder. Where the statutes governing the procedure for the execution of judgments require the executing official to first pursue the personal property of a judgment debtor, but, instead, said official proceeds directly to the sale of the judgment debtor’s real property the sale is void.'' Because the personal property of Defendant was not first pursued to satisfy the April 3, 2009 Default Judgment for debt, the Marshal’s Sale of the Subject Property was void and cannot be confirmed. 10 Witt v Rosenbush, 1 So.2d 651, 653 (Ala. 1941); Fid. & Deposit Co. of Maryland v. Riopelle, 216 N.W.2d 674, 678 (Minn. 1974); Smith v. Haywood, No. 90-L-15-182, 1991 WL 260177 * 2 (Ohio Ct. App. Dec 6, 1991). u Raniere v. I & M Investments, Inc., 387 A.2d 1254, 1257-1259 (N.J. Super. Ct. Ch. Div. 1978), aff'd, 411 A.2d 719 (N.J. Super. Ct. App. Div. 1980); Casa del Rey v. Hart, 750 P.2d 261, 265 (Wash. 1988). 4 Citimortgage, Inc. v. Lisette Manning a/k/a Lisette H. Manning, et al. Superior Court Case No. ST-07-CV-456 Memorandum Opinion Iii. Conclusion. Under the circumstances presented in the record, the Court concludes that there were substantial irregularities in the sale of the Subject Property which make said sale void. Therefore, Plaintiff's motion to confirm the sale cannot be granted. An appropriate order will be entered herewith. WAZ LZ Dated: July 77, 2011 : et Hon\Ad4m G. Christian Judge of the Superior Court of the Virgin Islands ATTEST: Venetia H. Velazquez, Esq. Clerk of the Court «hain. DS. Warelde Donna Donovan 4 Acting Court Clerk Supervisor bE, all