IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST, CROIX: KINGSHILL



EMPLOYEES RETIREMENT SYSTEM



OF THE GOVERNMENT OF THE



VIRGIN ISLANDS,



Plaintiff,



CIVIL NO. 1447/81



ACTION FOR DEBT AND



Vv



FORECLOSURE OF REAL



MORTGAGE



HENRY C. ARMSTRONG, ANASTACIA



)



ARMSTRONG and the UNITED STATES)



OF AMERICA,



)



Defendants.



)



TERRYLIN P. MEYERS, ESQUIRE



Assistant Attorney General



P.O. Box 2336



Charlotte Amalie, St. Thomas



U.S. Virgin Islands



00801



(809) 774-8588



(Attorney for EMPLOYEES RETIREMENT SYSTEM)



ALICIA SUAREZ, ESQUIRE



P.O. Box 597



Frederiksted, St. Croix



U.S. Virgin Islands



00840



(809) 772-9475



(Attorney for Defendants HENRY ARMSTRONG and



ANASTACIA C. ARMSTRONG)



JIM OLIVER, ESQUIRE



Assistant U.S. Attorney



United States Attorney's Office



Christiansted, St. Croix



U.S. Virgin Islands



00820



(809) 773-3920



(Attorney for UNITED STATES OF AMERICA)



FERDINAND & MELROSE TREASURE, Pro Se



#10 P Estate Rattan



Christiansted, St. Croix



U.S. Virgin Islands



00820



PETERSEN, Judge



MEMORANDUM OPINION



August KC 1987

G @



EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT v. ARMSTRONG et al

CIVIL NO. 1447/1981



ACTION FOR DEBT AND FORECLOSURE OF REAL MORTGAGE



Page 2



THIS MATTER is once again before this Court on a

Motion to Stay Writ of Assistance issued on May 20, 1987. For

the reasons stated herein, this Motion is hereby granted.

I.

FACTS



The plaintiff sought a judgment of foreclosure of

certain real property known as No.32-EB Estate Whim, St. Croix,

Virgin Islands. A summons directed to Henry and Anastacia

Armstrong along with a copy of the complaint was personally

served upon Anastacia on December 3, 1981. A/



The plaintiff subsequently amended the complaint which

substituted the United States of America as a defendant in place

of the Veterans Administation. The Veterans Administration an

agency of the United States held a mortgage on the subject

property. Neither Henry or Anastacia was ever served with a

copy of the amended complaint. The United States answered the

amended complaint and filed a cross-claim against Henry and



Anastacia Armstrong. A copy of the answer along with the



i/ Henry and Anastacia were divorced on November 5, 1973

and as a result hold the subject property as tenants in common.

28 V.I.C.§87(d); Todman v. Todman, 15 V.1I.518, 524 (3d Cir.

1978). They must therefore, be served individually. See Royal

Bank of Canada v. Suarez, Civ. No. 185/1985 (D.V.I. St. X.

1986).

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EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT v. ARMSTRONG et al

CIVIL NO. 1447/1981



ACTION FOR DEBT AND FORECLOSURE OF REAL MORTGAGE



Page 3



cross-claim was apparently mailed to the Armstrongs.



The Armstrongs never answered the complaint or the

cross-claim and a default was entered against them. A judgment

was issued in favor of the United States on its cross-claim and

in favor of the plaintiff on its complaint against the

Armstrongs. That judgment along with this Court's findings of



fact and conclusions of law established, inter alia, that the



United States through the Veterans Administration held a first

priority mortgage in the amount of some $18,700.00 of which a

little over $8,400.00 remain unpaid and that the plaintiff held

a second property mortgage in the amount of approximately

$17,800.00. This Court also ordered that the subject property

be sold to satisfy the judgment against the Armstrongs.



Both the plaintiff and cross-claimant filed a Writ of

Execution; however, the plaintiff subsequently moved to dismiss

its complaint against the Armstrongs and this Court granted the

plaintiff's motion on January 21, 1985.



Since the judgment on the cross-claim was apparently

valid, the subject property was sold at a Marshal's sale on

August 8, 1986 to one Ferdinand Treasure for $15,000.00. An

Order confirming sale was issued on September 18, 1986 which

provided for a six month redemption period. Mr. Treasure has

since moved for a Writ of Assistance which this Court granted on



May 20, 1987.

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EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT v. ARMSTRONG et al

CIVIL NO. 1447/1981



ACTION FOR DEBT AND FORECLOSURE OF REAL MORTGAGE



Page 4



Defendant Anastacia is now seeking to have this Court

issue an order staying the Writ of Assistance. According to

plaintiff, this Court's judgment is void since service of the

complaint, amended complaint and the cross-claim defective.

Whether service of the complaint and the amended complaint was

defective, this Court need not decide since the order granting

the plaintiff's motion to dismiss has made this issue moot. As

to the service of the cross-claim, there is merit to defendant's

contention.



II.

DISCUSSION



Due process requires the the defendant be given



adequate notice of the suit, Mullane v. Central Hanover Trust



Co., 339 U.S. 306, 313-314 (1950), and be subjected to the



personal jurisdiction of the court. International Shoe Co. v.



Washington, 326 U.S. 310 (1945). World-Wide Volkswagon Corp. v.



Woodson, 444 U.S. 286, 292 (1980). A judgment rendered in

violation of due process is void. Id. Rule 4 of the Federal

Rules of Civil Procedure which governs service of process

requires that notice of the action be served on the defendant.

Strictly speaking Rule 4 does not deal directly with

jurisdiction over the subject matter, jurisdiction over the



person, or venue. Wright and Miller, Federal Practice and

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EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT v. ARMSTRONG et al

CIVIL NO. 1447/1981 ;



ACTION FOR DEBT AND FORECLOSURE OF REAL MORTGAGE



Page 5



Procedure; Civil § 1063 at 204. The primary function of Rule 4

is to provide the mechanisms for bringing notice of the

commencement of the action to defendant's attention and to

provide a ritual that marks the Court's assertion if



jurisdiction over the lawsuit. Id. F.T.C. v. Compagnie de



Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300, 1312 n.61, (D.C.



Cir. 1980). Failure to adhere to the structures of Rule 4



likewise renders a judgment void. See America Tel. and Tel. Co.



v. Merry 592 F. 2d 118, 126 (2d Cir. 1979). Since pleadings

asserting new or additional claims for relief against a party in

default must be served upon him in the manner provided for

service of summons in Rule 4, Fed. R. Civ. P 5 (a), this court

must decide whether Henry and Anastacia were served with a copy

of the cross-claim in accordance with any of the procedures



enumerated in Rule 4. Merry, supra.



It is not open to dispute that Henry and Anastacia

were in default for failure to appear as was made known in this

Court's findings of fact and conclusions of law. The

cross-Claimant's proof of service indicates that a copy of the

answer and cross-claim was mailed to a post office box

presumably belonging to Henry or Anastacia or both of them. It

appears that this was the cross-claimants only attempt to

properly serve Henry and Anastacia and it quite obviously fell



short.

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EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT v. ARMSTRONG et al

CIVIL NO. 1447/1981



ACTION FOR DEBT AND FORECLOSURE OF REAL MORTGAGE



Page 6



Rule 4 provides in part that



A summons and complaint may be served



upon a defendant ...by mailing a copy



of the summons and of the complaint (by

first-class mail, postage prepaid) to the

person to be served, together with two

copies of a notice and acknowledgment

conforming substantially to form 18-A



and a return envelope, postage prepaid,

addressed to the sender. If no acknow-

ledgment of service under this sudivi-



sion of this rule is received by the sender

within 20 days after the date of mailing,

service of such summons and complaint shall

be made (personal delivery). Fed. R. Civ.

P, 4 (c) (2) (C) (ii); Perkin Elmer v. Trans

Med. Airways, S.A.L., 107 F.R.D. 55, 57

(D.C. N.Y. 1985) (emphasis added).



There is no indication that the required acknowlegment was sent

by the cross-claimant nor received, signed and returned by

either Henry or Anastacia. That being the case,’ the

cross-claimant was required to personally served defendants



Henry and Anastacia. United States v. Gluklick, 801 F.2d 834,



836 (6th Cir. 1986); Schuster v. Conley, 107 F.D.R. 755, 757

(D.C. Pa. 1985). This, however, was not done.



The plaintiff dismissed the complaint against the

defendants Henry and Anastacia, thus, the only basis for the

judgment of foreclosure is the cross-claim. Since the

cross-claim was not properly served, this Court must vacate the

judgment of foreclosure and order that everything flowing



therefrom, including the Marshal's sa



7

; be declared, Vv tw



EILEEN R. PETERSEN

Judge