Coast 360 Federal Credit Union v. Taitague

Opinion

FILED SUPERIOR COURT 1 IN THE SUPERIOR COURT OF GUAM OF GUAM 2 10\Q HAY 20 PM 3 50 3 ) CIVIL CASE N~-URT 4 COAST 360 FEDERAL CREDIT UNION, ) _ _,___...., BY:~ )

5 Plaintiff, ) DECISION AND ORDER )

6 vs. )

)

7 MARIA G. TAITAGUE, )

8 )

Defendant. )

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10 This matter came before the Court on Defendant Maria G. Taitague's Opposition to Order to 11 Show Cause and Motion to Dismiss which was ftled on February 19,2014. Defendant is represented by 12 Gary W. F. Gumataotao, Esq.. Plaintiff Coast 360 Federal Credit Union flk/a Government of Guam 13 14 Employees Federal Credit Union is represented by Roy T. Chikamoto, Esq.. Plaintiff did not file an

15 Opposition to the motion. Notwithstanding Defendant's request for oral argument, the Court exercises

16 its discretion and denies the request. After consideration of the arguments presented by the Defendant, 17 the Court hereby issues its decision and order.

18 19 20 BACKGROUND

21 On February 22, 2007, Plaintiff filed suit against Defendant for the breach of a promissory note.

22 Defendant was served with the Summons and Complaint on February 27, 2007. On April26, 2007, the 23 parties filed a Stipulated Judgment and Stipulation for Repayment of Debt; Order which was approved 24 and ordered by the Deputy Clerk of the Superior Court of Guam and entered on the docket on May 2, 25 2007. In the stipulation, the Defendant acknowledged receipt of the filed complaint and summons, that 26 27 she submits to the court's jurisdiction, and that she admits all of the allegations of the complaint. See

28 Stipulated Judgment and Stipulation for Repayment of Debt; Order, at para. 3 (Apr. 26, 2007). The

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1 stipulated payment and order provided that Defendant make bi-weekly payments of $233.00 until the

2 debt is paid. Id. at para. 4. 3 On May 6, 2011, Plaintiff filed an Ex Parte Motion for Order to Show Cause in re Contempt of 4 Court Order filed 26 April 2007 for Failure to Pay; Declaration in re Contempt. Hearing on the matter 5 was set for June 23, 2011. At the hearing on the matter, the Court was informed of the non-service of 6

7 the notice upon the Defendant and authorized its re-issuance.

8 On September 16, 2013, more than five years after entry of the judgment against Defendant,

9 Plaintiff filed an Ex Parte Application for Renewal of Judgment supported by a Declaration of Counsel. 10 The Application averred that "Defendant was making regular payments for about three years but then 11 abruptly stopped." Application for Renewal of Judgment (Sep. 16, 2013). On October 1, 2013, the 12 Court granted the motion and ordered the Stipulated Judgment entered on May 2, 2007, be renewed 13

14 pursuant to 7 GCA §23106. See Order Granting Ex Parte Motion for Renewal of Judgment (Oct. 2,

15 2013). 16 On January 28, 2014, Plaintiff filed an Order to Show Cause in re Contempt of Court Order 17 Filed 26 April2007, for Failure to Pay. Hearing on the matter was set for February 20, 2014. At the 18 hearing, Defendant appeared with counsel. Plaintiff's counsel indicated that he had just received the 19

20 motion and had not had the opportunity to review or respond to it. Defendant also clarified that what

21 had been filed was an Opposition to the Order to Show Cause and a Motion to Dismiss. The parties

22 agreed to have the matter continued and possibly resolve the issue. To date, the Court has received no 23 communication of a resolution of the matter. Furthermore, Plaintiff has not filed a responsive pleading 24 to either the Defendant's Opposition or the Motion to Dismiss.

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1 DISCUSSION

2 Preliminarily, the Court notes that the Plaintiff failed to file a response to either the Defendant's 3 opposition to the contempt proceedings or to the Defendant's Motion to Dismiss. The Local Rules of 4 the Superior Court provide that oppositions to motions may be filed within 28 days of the filing of the 5 motion. See CVR 7.1(d)(1). No opposition has been filed but nothing prevents the Court from 6

7 proceeding to address the motion. The Local Rules provide that the Court need not consider oppositions

8 to motions that do not comply with the Rules. See CVR 7.1(f) and (k).

9 Additionally, although Defendant has requested for oral argument on the motion; the Court 10 fmds that Defendant's motion adequately articulates its argument and that oral argument is not 11 necessary for its disposition. See CVR 7.1(e)(2)(D).

12 Defendant offers a variety of arguments essentially asserting (1) that the OSC is unsupported by 13

14 virtue of the lack of a valid judgment or order in effect as per 7 GCA §34101 (5) because the stipulated

15 judgment in this case had not been signed by a Superior Court Judge; (2) non-compliance with the 7

16 GCA §23101 pertaining to the enforcement of judgments after six years and that there can be no 17 enforcement of a lapsed judgment; (3) that pursuant to Rule 12(b)(6) of the Guam Code of Civil 18 Procedure Defendant is entitled to dismissal of the OSC; and fmally, in the alternative, that summary 19

20 judgment pursuant to Rule 56 in favor of the Defendant is appropriate. The Court will deal with each of

21 the arguments below:

22 A. LACK OF A VALID JUDGMENT OR ORDER IN EFFECT 23 i. Lack of Signature of a Superior Court Judge 24 Defendant asserts that there is not a valid judgment or order upon which contempt may be 25 prosecuted. First, Defendant argues that the Stipulated Judgment proffered by the Plaintiff was not 26

27 signed by a Superior Court Judge. However, "[tJhe Clerk of Court is additionally authorized to grant,

28 sign and enter the following orders without further direction of the court: ... Judgments based upon a

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1 confession of judgment or upon a stipulation of the parties for entry of judgment." Guam R. Civ. P.

2 77(c)(6). 3 Therefore, the Plaintiff had in its possession a valid Judgment or Order, signed by the Court or 4 its designee, and enforceable through contempt proceedings under? GCA §§34101(a)(5) and 34102(b).

5 ii. NON-COMPLIANCE WITH THE 7 GCA §23101 6

7 Second, Defendant complains that the Plaintiff had not sought to revive or renew the Stipulated

8 Judgment pursuant to the provisions of 7 GCA §23101 et seq which govern the enforcement or

9 execution of a judgment. 10 Under Guam law, a plaintiff can seek the Court's permission to enforce its judgment against a 11 defendant pursuant to the statute that provides:

12 In all cases the judgment may be enforced or carried into execution after the time 13 lapse of six years from the date of entry, by leave of Court, upon motion, or by 14 judgment for that purpose, founded upon supplemental pleadings; but nothing in this section shall be construed to revive a judgment for the recovery of money which shall 15 have been barred by limitation at the time of the taking affect (sic) of this section.

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17 7 GCA §23106 (1982)(formerly Section 685, Guam Code of Civil Procedure). After obtaining a

18 judgment, a creditor may, at any time within five years after its entry, have a writ of execution issued

19 for its enforcement. See 7 GCA §23101 (formerly Section 681, Guam Code of Civil Procedure). This 20 provision of Guam law "merely provides a limited time within which the judgment creditor may obtain 21 the writ of execution as a matter of right." Guam Economic Development Authority v. Ulloa, 841 F.2d 22 990, 992 (9th Cir. 1988). Thereafter, the issuance of the writ calls for the exercise of the court's 23

24 discretion as provided under 7 GCA §23106. /d. (referring to former Section 685, Guam Code of Civil

25 Procedure). 26 In other words, a judgment creditor is allowed, as a matter of right, to seek a writ of execution at 27 any time within five years of the date of entry of the judgment. 7 GCA §23101. Thereafter, the

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1 judgment creditor is required to seek the court's permission to execute on the judgment. 7 GCA

2 §23106. The application may be submitted ex parte. Granting permission to execute on a judgment 3 pursuant to this statute is not automatic. Rather, the decision of whether to grant or deny the application 4 rests with the sound discretion of the court. Finally, although there is no requirement in 7 GCA § 23106 5 that the moving party demonstrate diligence by explaining his failure to proceed with 7 GCA § 23101, a 6

7 moving party and the court should keep in mind that such an order is subject to review on motion to

8 vacate the order and recall the execution.

9 As indicated above, a Stipulated Judgment and Stipulation for Repayment of Debt; Order was 10 filed on April 26, 2007. It was signed and ordered by the Deputy Clerk of the Superior Court of Guam.

11 On September 16, 2013, more than six years after entry of the judgment against Defendant, Plaintiff 12 filed an Ex Parte Application for Renewal of Judgment supported by Declaration of Counsel. The 13

14 Application averred that "Defendant was making regular payments for about three years but then

15 abruptly stopped." Application for Renewal of Judgment (Sep. 16, 2013). On October 1, 2013, the 16 Court granted the motion and ordered the Stipulated Judgment entered on May 2, 2007, be renewed 17 pursuant to 7 GCA §23106. See Order Granting Ex Parte Motion for Renewal of Judgment (Oct. 2, 18 2013).

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20 Thus, the stipulated judgment in this case was properly revived and Plaintiff was given an

21 additional period of time within which to seek execution of the judgment obtained against Defendant.

22 B. RULE 12(b)(6) OF THE GUAM CODE OF CIVIL PROCEDURE 23 The Court believes that reliance on GRCP 12(b)(6) is misplaced. By its very terms, matters 24 brought pursuant to Rule 12 must be brought within twenty (20) days of receipt of the summons and 25 complaint by the defendant and the service of a motion permitted under the rule alters the periods of 26

27 times. See Guam R. Civ. P. 12(a). Defendant provides no authority for the application of a Rule 12

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1 (b)(6) motion at this stage of the proceedings. This case is almost seven (7) years after a Rule 12(b)(6)

2 motion should have been brought and is therefore not applicable. 3 C. SUMl\tiARY JUDGMENT PURSUANT TO GRCP RULE 56 4 Finally, the Defendant claims that the matter may be disposed of by way of summary judgment 5 pursuant to Rule 56(c) of the Guam Rules of Civil Procedure. Unlike the Rule 12(b)(6) motion 6

7 discussed above, a party against whom a claim is asserted may, at any time, move with or without

8 supporting affidavits for a summary judgment. See Guam R. Civ. P. 56(b ). Summary judgment is

9 proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 10 the affidavits, if any, show that there is no issue as to any material fact and that the moving party is 11 entitled to judgment as a matter of law. Wasson v. Berg, 2007 Guam 16 '.1[9 (citations omitted). There is 12 a genuine issue, if there is 'sufficient evidence' which establishes a factual dispute requiring resolution 13

14 by a fact-finder. /d. (citing Iizuka Corp. v. Kawasho Int '1 (Guam), Inc., 1997 Guam10<][7 (quoting T.

15 W Elec. Sew., Inc. v. Pac. Elec. Contractors Ass 'n, 809 F.2d 626,630 (9th Cir. 1987)). In addition, the

16 "dispute must be as to a 'material fact'," which is a fact that "is relevant to an element of a claim or 17 defense and whose existence might affect the outcome of the suit." /d. (citation omitted).

18 The Defendant's argument in this regard relies upon the continued vitality of the underlying 19

20 judgment of April26, 2007; however, as discussed above, there is a valid judgment which was properly

21 renewed with the Court's permission on October 2, 2013.

22 Therefore, the Court concludes that Defendant's Motion to Dismiss and the arguments 23 contained therein relied upon an inaccurate review of the record. The underlying Judgment and Order 24 upon which the instant contempt proceedings was brought was properly revived or renewed by order of 25 the Court and is still enforceable.

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1 CONCLUSION

2 For the foregoing reasons, the Court ORDERS that Defendant's Motion for Dismissal is

3 DENIED. 'The Court further ORDERS that the contempt proceedings be continued to the next date 4 when Plaintiffs counsel returns to Guam unleMAY2rwos1ffi~lved by the parties before then.

5 So ORDERED this day of , May, 2014.

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9 HONORABLE ALBERTO E. TOLENTINO 10 MAGISTRATE JUDGE, SUPERIOR COURT OF GUAM 11

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