IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS 
DIVISION OF ST. THOMAS AND ST. JOHN 
GREAT BAY CON DOMINIUM 
OWNERS ASSOCIATION, INC., 
Plaintiff, 
v. 
JAN PASSARELLA, RITZ-CARLTON 
DEVELOPMENT COMPANY, INC., 
Defendants. 
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CASE NO. ST- 13-CV-102 
ACTION FOR DEBT 
DECLARATORY JUDGMENT 
RE LIEN PRIORITY 
- ---------) 
JAMES M. DERR, ESQ. 
P.O. Box 664 
St. Thomas, VI 00804 
Attorney for Plaintiff 
LISA MICH ELLE KOMIVES, ESQ. 
BoltNagi PC 
5600 Royal Dane Mall, Suite 21 
St. Thomas, VI 00802 
Attorneys for Jan Passarella 
MATTHEW J . DUENSING, ESQ. 
Duensing, Casner & Fitzsimmons 
P.O. Box 6785 
SI. Thomas, VI 00804 
Attorneys for Defendant Ritz-Carlton 
Development Company, Inc. 
CHRISTIAN, ADAM G., Judge 
MEMORANDUM OPINION 
(Filed: December 16,201 4) 
Before the Court is "[Defendant] Jan Passarella's Motion to Set Aside Entry of Default" 
which Plaintiff Great Bay Condominium Owners Association, Inc. (the "G8COA") opposes. 
Defendant Ritz-Carlton Development Corporation, Inc. has not responded to said motion. For 
the reasons set forth below, Defendant Passarella's motion will be denied. 
I. 
FACTUAL AND PROCEDURAL BACKGROUND. 
Defendant Passarella is the owner of record of Residence Interest No. 6401 , Weeks 07. 
08, and 26, in the Club at the Great Bay Condominiums in St. Thomas, U.S. Virgin Islands (the 
"Subject Property"). The GBCOA filed this action on March 5, 2013, sccking a judgment 
against Defendant Passarella for debt and foreclosure on the aforementioned timeshare interests 
due to her failure to pay common charges and other assessments. 
Defendant Ritz-Carlton 
Creat Bay Condominium Owners Association, Inc. 
v. Jan Passarella, et al. 
Case No. ST-I3-CV-I02 
Memorandum Opinion 
Development Corporation, Inc. holds a first priority mortgage on the same timeshare units, and 
has filed a cross-claim for debt and foreclosure against Defendant Passarella. l 
On May 9, 2013, the GBCOA moved for the entry of default against Defendant 
Passarella. Appended to the motion was the affidavit of Terence Kelly, a process server in the 
State of New York. Mr. Kelly avers that he served the summons and complaint addressed to 
Defendant Passarella on a co-tcnant of suitable age at the dwelling of said Defendant. The 
affidavit notes that the person served appeared to be approximately 50 years of age, but refused 
to give her name. The affidavit further states that service was completed on April 8, 2013. In 
view of this information, and because Defendant Passarella had not appeared, pleaded, or 
otherwise defended against the GBCOA's complaint, the Court entered default against her on 
May 24, 2013.' 
On September 18, 2013, the Court received a letter dated September 13, 2013, from 
Defendant Passarella asking for time to locate an attorney in the Virgin Islands to represent her, 
and alleging that she only learned of the lawsuit four days earlier. Because the letter did not 
appear to have been served on the attorneys for the remaining parties, the Court issued an Order 
dated September 20, 2013, directing the Clerk of the Court to circulate copies of Defendant 
Passarella's letter to all counsel of record. On October 3, 2013, counsel entered an appearance 
on behalf of Defendant Passarella, and the instant motion was filed on November 4, 2013. The 
GBCOA filed its opposition on November 20, 2013.3 
Defendant Passarella premises her motion on Rule 55(c) of the Federal Rules of Civil 
Procedure and contends that there is good cause to vacate the entry of default entered against her. 
She asserts that there is no prejudice to the GSCOA because its ability to pursue its claim has not 
been hindered by the loss of evidence, fraud, or reliance on a judgment. Next, Defendant 
Passarella claims that her failure to timely respond to the complaint was excusable because she 
was unaware of the lawsuit, as set forth in her September 13, 2013, letter to the Court. Finally, 
she argues that she has meritorious defenses because she was not served with process and that 
the GBCOA failed to givc her notice that she was in default in paying her condominium dues. 
The GSCOA counters that Defendant Passarella fails to present sufficient evidence to 
contest service of process, and that she made a voluntary appearance in this action which is the 
equivalent of service of process under Virgin Islands law. It further contends that Defendant 
Passarella cannot demonstrate any legal requirement that she receive notice of delinquency in the 
payment of the common charges for the timeshare interests at issue. Finally, the GSCOA argues 
that, in any event, there is no recognized legal defense to the obligation of unit owners to pay 
common charges. 
The Ritz-Carlton Development Company, Inc. has assigned its interest in the promissory note and 
mortgage to RC St. Thomas, LLC. The latter entity will be substituted as a defendant in this case in a separate 
order. 
2 
The Entry of Default is dated May 23, 2013, and was entered by the Clerk of the Court on the following 
day. 
3 
The GBCOA also filed a motion for default judgment against Defendant Passarella on October 28, 2013. 
The Court will address that motion separately. 
2 
Great Bay Condominium Owners Association, Inc. 
'Y. Jan Passarella, elal. 
Case No. ST· I3·CV· IOl 
Memorandum Opinion 
II. 
LEGAL DISCUSSION. 
a. 
The Legal Standard Applicable to Defendant Passarella's Motion to Set 
Aside Entry of Default. 
The Court first notes that Defendant Passarella improperly relies upon Rule 55(c) of the 
Federal Rules of Civil Procedure. Those provisions apply in the Superior Court only where they 
are not in conflict with the rules of this tribunal.4 There is a specific Superior Court rule which 
governs Defendant Passarella's motion, and it provides "'For good cause shown, the court, upon 
application and notice to the adverse party, may set aside an entry of default, judgment by default 
or judgment after trial or hearing. Rules 59 to 6 1, inclusive, of the Federal Rules of Civil 
Procedure shall govern such applications."s Under our Rule 50, if the motion seeking relief is 
filed within twenty eight (28) days of entry of the challenged order, Rule 59 of the Federal Rules 
ofCivii Procedure applies.6 If the motion is filed thereafter, Rule 60 govems.7 In this matter, 
Rule 60 applies because default was entered against Defendant Passarella on May 24, 2013, and 
her motion was filed on November 4,2013. 
Based on the plain language of Rule 50 of the Superior Court Rules,S a motion to set 
aside an entry of default and a motion to set aside a default judgment are governed by the same 
standards, and the pertinent legal issues are those identified and argued by both parties. On a 
motion to set aside a default judgment, the movant must demonstrate "( I) whether vacating the 
default [J will visit prejudice on the plaintiff, (2) whether the defendant has a meritorious 
defense, and (3) whether the default was the result of the defendant's culpable conduct.,,9 
Because Virgin Islands judicial policy favors decisions on the merits of litigation, trial courts 
must he mindful that judgments by default arc not favored. 10 
h. 
Defendant Passarella Has Not Presented a Meritorious Defense. 
On a motion to vacate an entry of default, the most vital criterion for a movant to 
establish is the existence of a meritorious defense. I I To meet her burden, Defendant Passarella 
• , 
SUPER. CT. R. 7. See, Corraspe v. People. 53 V.1. 470. 480 (2010). 
SUPER. CT. R. 50. 
6 
Beachside Assocs .. LLC v. Fishman. 53 V.1. 700. 714·15 (20 10) (quoting Ruiz v. Jung. S. Ct. Civ. No. 
2008-035,2009 WL 3568182 at • 3 (V. I. Oct. 19, 2009». 
7 
Id. 
See. In re Application o/Shores. 59 V.1. 994. 100 1 n. 5 (V. I. Oct. 30, 2013) (citations omitted) (noting that 
principles of statutory construction apply to coun procedural rules). 
Q 
Spencer v. NllI'arro. S. Ct. Civ. No. 2007·69, 2009 WL 1078144 at • 2 (V.I. Apr. 8, 2009) (quoting Harad 
v. Aclna Cas. and Sur. Co .. 839 F.2d 979, 982 (3d Cir. 1988». See also. Znwadski de Bueno v. Bueno Castro. 822 
F.2d 4 16. 419-20 (3d Cir. 1987). 
10 
Spencer I'. Namrro, 2009 WL 1078 144 at • 2 (ciling Ryans Rest .. Inc. v. Lewis. 949 F. Supp. 380, 383 
(O.V.1. App. Div. 1996». 
II 
United States I'. S55,518.05 in Us. Currency, 728 F.2d 192, 195 (3d Cir. 1984). 
3 
Great Bay Condominium Owners Association, Inc, 
v. Jan Passarella, ct a!. 
Case No, ST-13-CV-I02 
Memorandum Opinion 
need not prove her defense at this stage,I2 
However, she must present legal issues and 
supporting facts which, if established, would constitute a complete defense to the direct claims 
against her. 13 The "[f]ailure to establish a meritorious defense weighs heavily against setting 
aside the default,,,14 Defendant Passarella presents two potential defenses: I) she was not served 
with process; and 2) GSCOA failed to provide her with a notice that she was delinquent III 
paying her common charges for the timeshare interests. 
The asserted defense of service of process, fails for two reasons. 
First, Defendant 
Passarella's attorney entered a notice of appearance on October 3, 2013.15 The notice did not 
refer to any challenge to service of process or the personal jurisdiction of the Court over this 
Defendant. Thus, Defendant's attorney entered a general appearance and waived any ability to 
Inter challenge personal jurisdiction or service of process. 16 
Second, service of process in this Court is guided by the provisions of Rule 4 of the 
Federal Rules of Civil Procedure.17 Service of process on a pcrson in a United States jurisdiction 
may be made by serving "an individual ... in a judicial district of the United States by ... 
leaving a copy of [the summons and of the complaint] at the individual'S dwelling or usual place 
of abode with someone of suitable age and discretion who resides thcre." 18 
In support of its default request the GBCOA filed a sworn affidavit of a process server. 19 
The process server noted that the individual he served declined to identify herself, but advised 
him that she was a co-tenant. The affidavit further described the person as a female caucasian 
with blonde hair and approximately 50 years of age. In addition, the affidavit noted that "Jane 
Doe" was between 5 feet four inches and 5 feet 8 inches in height, and weighed between 131 and 
160 pounds. As the GBCOA has submitted a sworn affidavit of service which stated that the 
person served resided at the abode of Defendant Passarella, was of suitable age, and, in the view 
of the process server, was of suitable discretion, service of process was proper. Thus, there is a 
presumption that Defendant Passarella was properly served which can be rebutted only by very 
convincing competent evidence.2o 
n 
State Farm Allto. Ins. CO. I'. Cohan. 409 F. App'x 453. 456 (2d Cif. 2011 ) (citation omitted). 
13 
/d. See, also, World Enrm 't, Inc. 1'. Brown, 487 F. App'x 758, 761 (3d Cif. 20 12) (citations omitted). 
14 
World Enrm 'r, Inc. v. Brown, 487 F. App'x a1 761. 
" 
Although Defendant Passarella riled a pro se letter on September 13.2013. as discussed below, because it 
is not sworn it cannOi refute the affidavil of process server Terrance Kelly. 
16 
V.1. CODE ANN. tit. 5, ~ 115 (1997). See al.~o, In re Najawicz, 52 V.1. 311 , 338-39 (2009) (collecling 
cases). 
" .. 
SUPER. CT. R. 27(b) . 
FED. R. Clv. P. 4(e)(2)(B). 
19 
The sworn statement of the process server is proper proof of service under Virgin Islands law and the 
Federal Rules of Civil Procedure. 5 V.I.e. ~ I 14(a)(2) (1 997); FED. R. Clv. P. 4(/). 
20 
See. People's United Equip. Fin. Corp. l'. Hartmann, 447 F. App'x 522. 524 (5th Cir. 2011) (citations 
omitted) (stating that the evidence required to counler a sworn affidavit of service must be "clear and convincing"); 
O'Brien l'. R.J. O 'Brien & Assocs .. Inc .. 998 F.2d 1394, 1398 (7th Cir. 1993) (citations omitted) ("strong and 
convincing" evidence is required to refute a process server's sworn affidavit). 
4 
Great Bay Condominium Owners Association, Inc, 
v, Jan Passarella, cI al. 
Case No, ST-13-CV-I02 
Memorandum Opinion 
In support of her claim, Defendant Passarella relics on the contents of her September 13, 
2013, letter to this Court. The letter simply states that she was not aware of the lawsuit until she 
received an envelope from co-Defendant Ritz-Carlton Development Company, Inc. In addition, 
her missivc is not sworn. Dcfendant Passarella does not counter the process server's sworn 
affidavit stating that Jane Doe resided at Defendant Passarella's usual place of abode, or that 
Jane Doe was of suitable age and discretion when the process server completed service. She also 
does not contcnd that no one who resides with her fits the description of Jane Doe in thc process 
server's affidavit. Nor does she challenge that the address on the process server's affidavit is her 
abode. Because Defendant has not provided any facts under oath which counter the specifics set 
out in the process server's affidavit, she has not rebutted the presumption that she was properly 
served with process.2 1 Therefore, the purported affinnative defense oflack of service of process 
cannot be viewed as a meritorious. 
Defendant Passarclla's sccond defense, that the GBCOA failed to notify her that she was 
delinquent in the payment of the common charges for her timeshare interests, fares no better than 
the first. 
In support of its motion for default judgment, which was served on Defendant 
Passarella, the GBCOA submits the affidavit of Marsha Leighton-Herrman, who is responsible 
for maintaining the accounts for the GSCOA members. 
Ms. Leighton-Herrman specifically 
avers under oath that Defendant Passarella was provided with an accounting for all charges 
assessed against her timeshare interests which was sent to her last known address. Notably. the 
address for Defendant Passarella on the authenticated statement attached to the aforesaid 
affidavit is the same address set forth on the affidavit of the proccss server. 
Dcfendant Passarella does not provide a counter-affidavit to refute the sworn statements 
of Marsha Leighton-Herrman. Rather, her defense is a single sentence contained in her instant 
motion. The arguments and unsworn statements of attorneys are not evidence on which a court 
can rely when deciding motions.22 Defendant Passarella also does not point to any provisions in 
the Declaration and Bylaws of the GBCOA or the Virgin Islands Condominium Act to support 
her purported defense. Finally, as the GSCOA correctly notes, under Virgin Islands law, a 
condominium, or in this case timeshare, owner's duty to pay assessed common charges is 
absolute and there is no defense to that obligation. 23 For these reasons, the Court concludes that 
the lack-of-notice claim of Defendant Passarella does not constitute a meritorious defense. 
c. 
Defendant Passarella Has Not Demonstrated That Her Conduct Was 
Excusable, and Thcre Will Be Prejudice to GBCOA if the Entry of Default is Vacated. 
Consideration of the two remaining factors reveals that they also disfavor Defendant 
Passarella. Her claim of excusable conduct is premised on the same circumstances underlying 
21 
Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57-58 (2d Cir. 2002) ("A defendant's 
sworn denial of receipt of 5elVice, however, rebuts the presumplion of proper selVice established by the process 
sclVer's affidavit and necessitates an evidentiary hearing. But no hearing is required where the defendant fails to 
swear to specific faclS to rebut the statements in the process selVer's affidavits."). 
22 
Henry v. Dennery, 55 V.I. 986, 994 (20 11). 
23 
Weary v. Long Reef Condo. Ass 'n, 57 V. I. 163, 172 (201 2); Towers Condo. Ass 'n v. Lawrence, 32 V.I. I RS, 
187-89 (Terr. Ct. 1995). 
5 
Great Bay Condominium Owners Association, Inc. 
v. Jan Passarella, et al. 
Case No. ST-I3-CV-102 
Memorandum Opinion 
her claim of a lack of service of process. However, the Court already found service of process 
was proper based upon the discussion above. In the absence of any sworn explanation from her, 
the Court cannot conclude that Defendant Passarella's failure to timely respond to the GBCOA's 
complaint was excusable. 
Finally, the Court concludes that there would be prejudice to the GBCOA if the entry of 
default were vacated. Defendant Passarella has not presented any meritorious defense to the 
claims brought by the GBeOA. In fact, Virgin Islands law specifically declares that there is no 
defense to an action by a condominium association against a unit owner for unpaid common 
charges.24 If the default were lifted, the GBCOA would be forced to endure furthcr litigation on 
her liability for a claim that Defendant Passarella cannot legally contest. This result would be 
contrary to the Court's policy of guarding againsl unnecessary expense in litigation.2oS 
III. 
CONCLUSION. 
As discussed above, Defendant Passarella has failed to prevail on any of the three 
elements necessary for this Court to set aside the entry of default against her. Therefore, the 
Court will issue an appropriate order of even datc denying her motion to set aside the entry of 
default. 
Dated: December Jk ' 2014 
ATTEST: 
Estrella George 
Acting Clerk of the Court 
, 
~;?3> 
~n 
Judge of the Superior Court 
of the Virgin Islands 
2( 
The Coun recognizes that Defendant Passarella may conlesl the tOlal amount of common charges sought by 
an association. Even when in defaull a defendant may challenge the amount of damages sought by a plaintiff. See. 
King v. Appleton, S. Ct. Civ. No. 2012-0138.2014 Wl4968290 at· 2-3 (V.I. Oct. 6, 2014) (citations omitted). See 
also. Tabas Colon v. Diaz-Gonzalez, Civil No. 04- 2371, 2009 Wl 249364 at • 3 (D. P.R. Jan. 23,2009) ("However, 
albeit a defendant on default has no standing to contest the factual allegations of plaintiffs claim for relief. he does 
not waive his right to question the extent of the damages suffered by the plaintiff.") Therefore, the mere fact that 
there may be a dispute as to the amount of the common charges does not weigh in favor of lifting a default which 
only precludes a challenge to liability. In any event, as of today, Defendant Passarella has not submiued any 
documents contesting the amount of common charges sought by GBCOA. 
l~ 
See. SUPER. CT. R. I. 
6