IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
MERCHANTS COMMERCIAL BANK,
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Plaintiff,
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v.
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CIVIL NO. 2010-25
GINGER AGATHA HARVEY, a/k/a
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AGATHA HARVEY LOBBAN, 
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individually an as Trustee of the 
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Enez Ione Harvey Trust, 
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Defendants.
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____________________________________)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to appoint a receiver to collect rental
income from the property that is the subject of this debt and foreclosure action.  Plaintiff seeks
the appointment of a receiver based on provisions of the loan agreement and mortgage that
provide for the appointment of a receiver in the event of default and a subsequent foreclosure
action.  Plaintiff advises the Court that there is a residence situated on the property, that the lower
level is rented, and that, upon information and belief,  the upper level is unoccupied.  Plaintiff
maintains that leasing the unoccupied portion of the residence will generate income which could
be applied to defendant’s debt.  In furtherance of this objective, plaintiff asks the Court to
“appoint Merchant as the receiver to manage the Property so as to  maximize rental income and
to maintain the premises in order preserve plaintiff’s security interest therein.”  (Motion to
Appoint Receiver, p. 3).
This Court, in National Investors Pension Ins. Co. v. Bayside Resort, Inc., 1984 WL 2849 
Case: 3:10-cv-00025-CVG-RM   Document #: 22   Filed: 11/04/10   Page 1 of 3
Merchant Commercial Bank v. Ginger Agatha Harvey, a/k/a Ginger Harvey Lobban,
individually and as Trustee of the Enez Ione Harvey Trust
Civil No. 10-25
Order
Page 2 of 3
(D.V.I. 1984), acknowledged that there are cases where a receiver has been appointed in
foreclosure actions based solely upon mortgage provisions that provide such as appointment of a
receiver. Id. *2.  However, the Court noted that “the better rule, and the majority rule, is that such
a provision is not binding on the court, but should be one of the equities to be considered in
making a decision on whether or not to appoint a receiver.”  Id.  (citations omitted).  The Court
further explained that“[t]he appointment of a receiver is an equitable remedy of rather drastic
nature available at the discretion of the Court. . . .”  Id. (quoting Mintzer v. Arthur L. Wright Co.,
263 F.2d 823 (3rd Cir. 1959)).   In exercising its discretion to appoint a receiver under the
majority rule, the Court should consider the following factors: “1) whether the security is
adequate to cover the debt, 2) whether the mortgagor is insolvent, 3) whether there exists in the
mortgage instrument a pledge of rent and profits to the mortgagee, 4) whether waste has been
committed, 5) or whether the security is endangered by nonpayment of taxes.” 1984 WL 2849 at
*2 (citations omitted).
Here, plaintiff relies exclusively on the provisions in the loan agreement and mortgage as
the basis for the Court to appoint a receiver, and has made no attempt to establish any of the
other factors listed above.  Because the appointment of a receiver under the circumstances 
presented here is generally not favored, this Court, like the Court in National Investors Pension
Ins. Co., will deny plaintiff’s motion without prejudice for failure to address the above-
referenced factors.   
Case: 3:10-cv-00025-CVG-RM   Document #: 22   Filed: 11/04/10   Page 2 of 3
Merchant Commercial Bank v. Ginger Agatha Harvey, a/k/a Ginger Harvey Lobban,
individually and as Trustee of the Enez Ione Harvey Trust
Civil No. 10-25
Order
Page 3 of 3
For the foregoing reasons, plaintiff’s motion to appoint a receiver is DENIED without
prejudice. 
DATED: November 4, 2010
S\____________________________
RUTH MILLER
United States Magistrate Judge
Case: 3:10-cv-00025-CVG-RM   Document #: 22   Filed: 11/04/10   Page 3 of 3