Frongillo v. Bank of STX, inc.

2026 V.I. 3

Opinions

Opinion

For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS

GABRIELLE FRONGILLO, ) S. Ct. Civ. No. 2025-0034 Appellant/Judgment Debtor, ) Re: Super. Ct. Civ. No. 343/2017 (STX)

)

v. )

)

BANK OF ST. CROIX, INC., )

Appellee/Judgment Creditor. )

)

On Appeal from the Superior Court of the Virgin Islands Division of St. Croix Superior Court Judge: Hon. Debra S. Watlington

Considered: November 7, 2025 Filed: March 9, 2026

Cite as: 2026 VI 3

BEFORE: RHYS S. HODGE, Chief Justice; IVE ARLINGTON SWAN, Associate Justice ; and HAROLD W.L. WILLOCKS, Associate Justice.

APPEARANCES:

Gabrielle Frongillo St. Croix, U.S.V.I.

Pro Se,

Samuel T. Grey, Esq. Grey Law, P.C. St. Croix, U.S.V.I.

Attorney for Appellee.

OPINION OF THE COURT

HODGE, Chief Justice.

¶1 Gabrielle Frongillo appeals a nunc pro tunc entry of the Superior Court, which reduced the

period of time afforded by statute in which she could redeem foreclosed property after a marshal’s

sale. For the reasons that follow, we reverse and remand.

Opinion of the Court

Page 2 of 12

I. BACKGROUND

¶2 This is an action to foreclose a mortgage. According to the brief record, in 2017 the Bank

of St. Croix sued Gabrielle Frongillo, John Frongillo, and 40 King Place, LLC (the “judgment

debtors”1), to foreclose on Plot No. 40-A & B (5,466 square feet) of King Street, Town of Chris-

tiansted, St. Croix (“the Property”). The Bank obtained a default judgment. During post-judgment

proceedings, approximately five years elapsed with little activity on the docket.2 Then, on April 4,

2023, the Bank—as judgment creditor—obtained a writ of execution and attached the Property.

The Property was to be auctioned in a marshal’s sale, and the Bank provided notice of the sale by

publication. The sale was held on October 4, 2024, and the Property was sold to Kisha Christian.3

¶3 On November 20, 2024, the Bank moved for an order of confirmation of the sale. The

Superior Court granted the motion and confirmed the sale about five months later on April 16,

2025.4 The docket sheet contains no activity during this five-month interval, save for a notice of

change of contact information for the Bank’s counsel.

1 Apparently the LLC held title to the Property, and Gabrielle and John Frongillo are the beneficial owners of the LLC and personally guaranteed the mortgage loan. For clarity, while we refer to all three as the “judgment debtors,” Gabrielle Frongillo, proceeding pro se, is the sole appellant and represents only her interests in the proceeding. 2 We take judicial notice that Judge Robert A. Molloy, who had been assigned to this case, was appointed in 2020 to the United States District Court of the Virgin Islands. 3 The record is silent on whether title has transferred and who is in actual possession of the Property at present. To date, Kisha Christian has not sought to intervene in this case. 4 Presiding Judge Debra S. Watlington signed the confirmation order, though the docket sheet does not specify precisely when this case was reassigned after Judge Molloy’s appointment to the federal bench. The presiding judge of the Superior Court has authority to assign and reassign cases, including to himself or herself, to “secure the prompt dispatch of the business of the court.” Vanterpool v. Gov’t of the V.I., 63 V.I. 563, 574 & n.4 (V.I. 2015) (quoting 4 V.I.C. § 72b(a)).

2

Page 3 of 12

¶4 The Bank then moved to backdate confirmation of the sale nunc pro tunc to November 20,

2024—the date of the Bank’s original motion for confirmation of the sale. On May 15, 2025, the

court granted the Bank’s motion. The court observed that upon confirmation of a marshal’s sale,

Virgin Islands law gives the judgment debtor six months to exercise his right of redemption—that

is, his ability to reclaim the property by paying off the outstanding debt, plus taxes and interest.

See V.I. CODE ANN. tit. 5, § 496; 28 V.I.C. § 535. The court held, however, that it could shorten

the six-month redemption period in “equitable circumstances.” In its view, if there were a lapse of

time between the judgment creditor’s motion for confirmation and the court’s order of confirma-

tion, the court could properly backdate its order to the date the motion was filed. The court ex-

plained that doing so would prevent undue extension of the redemption period and ensure that

judicial delay in confirming the sale would not penalize judgment creditors. The court cited a Third

Circuit case, Villanueva v. Daniel, 512 F.2d 308 (3d Cir. 1975), for support. The court then entered

a separate order amending confirmation of the marshal’s sale nunc pro tunc to November 20, 2024.

¶5 Frongillo, proceeding pro se, timely appealed. See V.I. R. APP. P. 5(a)(1). Her brief—which

is mostly in bullet-point format—argues that the Superior Court erred in amending confirmation

nunc pro tunc because it reduced her time to redeem the Property despite the statutory six-month

guarantee. Seeking reversal of the nunc pro tunc order, she asks that we hold that her six-month

redemption period started when the Superior Court originally confirmed the marshal’s sale on

April 16, 2025.5 The Bank, for its part, asks us to affirm, relying entirely on Villanueva.

5 Frongillo’s brief actually says “April 10, 2024.” We instead use April 16, 2025, which is the operative date of confirmation. The “operative date from which the six months [for redemption] is calculated is the date of entry of the order.” Miller v. Sorenson, 67 V.I. 861, 873 (V.I. 2017) (emphasis added). Here, the presiding judge dated the confirmation order April 9, 2025, the clerk attested to it on April 10, and the clerk formally entered the order on April 16. Thus, using April 16, 2025, as Frongillo’s requested relief date is consistent with Miller.

3

Page 4 of 12

II. DISCUSSION

A. Jurisdiction and Standard of Review

¶6 The Supreme Court has jurisdiction over all appeals arising from final judgments, final

decrees, and final orders of the Superior Court. 48 U.S.C. § 1613a(d); 4 V.I.C. § 32(a). Generally,

a decision is final if it “ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Beachside Assocs. v. Fishman, 53 V.I. 700, 706 (V.I. 2010) (quoting Estate

of George v. George, 50 V.I. 268, 274 (V.I. 2008)). Here, the Superior Court has already entered

judgment; the matter on appeal concerns only execution of the judgment. The Superior Court dis-

posed of the sole issue before it—confirmation of the marshal’s sale nunc pro tunc—thereby bring-

ing this foreclosure action to an end. Therefore, so far as the Superior Court was concerned, the

nunc pro tunc order left nothing further for it to do, resulting in an appealable final order.

¶7 We review the Superior Court’s factual findings for clear error and its legal conclusions de

novo. Daley-Jeffers v. Graham, 69 V.I. 931, 935 (V.I. 2018). The standard of review for a nunc

pro tunc entry is de novo where, as here, the appeal presents a question of law. See, e.g., Edward

v. GEC, LLC, 67 V.I. 745, 752 (V.I. 2013) (“This Court exercises plenary review of the Superior

Court’s application of law.”); see also Nisenan Tribe v. Jewell, 650 Fed. Appx. 497, 499 (9th Cir.

2016) (“To the extent Appellants are challenging the district court’s jurisdiction to enter such order

nunc pro tunc, our review is de novo. To the extent Appellants challenge the district court’s exer-

cise of its discretion to issue an order nunc pro tunc, we review the court’s ruling for abuse of

discretion.”) (citation omitted).

B. The Nunc Pro Tunc Order

¶8 If the judgment debtor in a mortgage foreclosure action desires to redeem property sold in

a marshal’s sale, he must do so “within six months after the order of confirmation of sale.” 28

4

Page 5 of 12

V.I.C. § 535; accord 5 V.I.C. § 496. On April 16, 2025, the Superior Court confirmed the sale of

the Property, setting October 16, 2025, as the deadline for redemption. But a month later the Su-

perior Court entered the nunc pro tunc order at issue, backdating confirmation and, concomitantly,

the start of the redemption period to November 20, 2024. That order changed the redemption dead-

line to May 20, 2025—a difference of nearly five months. Frongillo maintains that the nunc pro

tunc order is invalid and that the court exceeded its authority to adjudicate confirmation of mar-

shal’s sales.

¶9 We have had little occasion to pass upon the scope of nunc pro tunc entries. Since this

appeal squarely presents the issue, we take this opportunity to address it. Latin for “now for then,”

nunc pro tunc has a particular purpose: to make the record “speak the truth.” Fowler v. Equitable

Tr. Co., 141 U.S. 384, 394 (1891). Nunc pro tunc addresses a situation in which the record contains

an inaccuracy about the court’s actions, such as a clerical error or an omission of an order that the

court actually made. See John v. People, 63 V.I. 629, 636 n.1 (V.I. 2015). A nunc pro tunc entry

resolves this situation by correcting the error or entering the omission now and backdating its effect

as if the entry had been made then. Therefore, as applied to court orders, a nunc pro tunc entry is

valid only if (1) the court actually performed the act being entered or corrected, which requires

evidence of that act’s essence and existence in fact; and (2) the record omits the act or describes

the act inaccurately. These propositions make plain that the ambit of nunc pro tunc is narrow and

its use, accordingly, is to be infrequent. Nunc pro tunc entries properly may be used to correct

scrivener’s errors. See Brooks v. Gov’t of the V.I., 58 V.I. 417, 428 (V.I. 2013) (mislabeled parties);

Wessinger v. Wessinger, 56 V.I. 481, 485 n.4 (V.I. 2012) (same); Simpson v. Golden Resorts,

LLLP, 56 V.I. 597, 602 (V.I. 2012) (omitted exhibits); Velazquez v. People, 65 V.I. 312, 316 n.1

(V.I. 2016) (jury verdict mistakenly transcribed as first-degree, not third-degree, assault); John, 63

5

Page 6 of 12

V.I. at 636 n.1 (similar). They may also memorialize an oral ruling actually made from the bench

in a subsequent written judgment. See Walters v. Parrott, 58 V.I. 391, 397 (V.I. 2013); In re Drue,

57 V.I. 517, 521 (V.I. 2012). In either case the nunc pro tunc entry remains true to its end, for by

entering or correcting at present what the court in fact did in the past, the entry does nothing more

than ensure that the record accurately reflects the reality of what the court has done.

¶ 10 What nunc pro tunc entries cannot do is “make the record what it is not.” Roman Cath.

Archdiocese v. Acevedo Feliciano, 589 U.S. 57, 65 (2020). Put differently, nunc pro tunc requires

some factual basis for itself. A nunc pro tunc entry cannot purport to place on the record a fact or

act that never occurred. Nor may it backdate an order the court never actually made—even one

that, in hindsight, ought to have been made but was not. Indeed, a court cannot “make it appear

that it took an action which it never took,” Missouri v. Jenkins, 495 U.S. 33, 49 (1990), so the

“failure of a court to act, or its incorrect action, can never authorize a nunc pro tunc entry,” Recile

v. Ward, 496 F.2d 675, 680 (5th Cir. 1974). Moreover, because a nunc pro tunc entry merely

ensures the accuracy of the record, a valid entry does not alter the rights of the parties at law. By

aligning the record with the substance of the court’s judgment, the nunc pro tunc entry alters the

record, not the judgment, and only as a matter of evidence. The entry does not revise matters of

fact or alter the scope of the judgment, neither expanding nor diminishing the rights and duties

fixed by it. Thus, nunc pro tunc is not an “Orwellian” vehicle for revisionist history. Acevedo

Feliciano, 589 U.S. at 65. If a nunc pro tunc entry indeed purports to “rewrite history,” it is void.

Cent. Laborers’ Pension, Welfare, & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999).

6

Page 7 of 12

¶ 11 Before applying these principles to this case, we note that federal6 and state7 court decisions

consistently have reaffirmed the bounds of nunc pro tunc. See also 21 C.J.S. Courts § 247 (col-

lecting cases and discussing scope); 56 AM. JUR. 2D Motions, Rules and Orders § 62 (same). These

principles are long settled; the roots of nunc pro tunc ultimately lie in the common law of England.

See, e.g., Jesson v. Brewer (1763), Dick. 370, 21 Eng. Rep. 312 (using nunc pro tunc to place on

the record a copy of a 1684 decree in Chancery, the original having been lost); see also Wight v.

Nicholson, 134 U.S. 136, 144 (1890) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND *407–08 (1768)); A.C. FREEMAN, A TREATISE ON THE LAW OF JUDGMENTS 51

n.2 (2d ed. 1874) (collecting English cases). And the common law was long ago made part of the

foundation of Virgin Islands law, just as it was in federal and state courts. See Banks v. Int’l Rental

& Leasing Corp., 55 V.I. 967, 976 (V.I. 2011) (discussing 1 V.I.C. § 4 and noting that its prede-

6 See, e.g., Acevedo Feliciano, 589 U.S. at 65; Gagnon v. United States, 193 U.S. 451, 456–57 (1904); Hickman v. City of Fort Scott, 141 U.S. 415, 418 (1891); Wight v. Nicholson, 134 U.S. 136, 144 (1890); Aetna Ins. Co. v. Boon, 95 U.S. 117, 125–26 (1877); Gray v. Brignardello, 68 U.S. (1 Wall.) 627, 636 (1863); Glynne v. Wilmed Healthcare, 699 F.3d 380, 383–84 (4th Cir. 2012); Recile, 496 F.2d at 680; Patterson v. Chrysler Grp., LLC, 845 F.3d 756, 761 (6th Cir. 2017) (applying Michigan law); Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995); United States v. Suarez-Perez, 484 F.3d 537, 541 (8th Cir. 2007); Cairns v. Richardson, 457 F.2d 1145, 1149 (10th Cir. 1972) (applying Kansas law); Stansell v. Revol. Armed Forces, 771 F.3d 713, 747 (11th Cir. 2014). 7 See, e.g., Shinn v. Ariz. Bd. of Exec. Clemency, 521 P.3d 997, 1002 (Ariz. 2022); Ford Motor Co. v. Washington, 431 S.W.3d 210, 222 (Ark. 2013); Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995); McGuire v. Kenoma, LLC, 447 S.W.3d 659, 663 (Mo. 2014) (en banc); CBI, Inc. v. McCrea, 285 P.3d 429, 432 (Mont. 2012); Continental Oil Co. v. Harris, 333 N.W.2d 921, 923 (Neb. 1983); Mack v. Estate of Mack, 206 P.3d 98, 107 (Nev. 2009); Gletzer v. Harris, 909 N.E.2d 1224, 1228–29 (N.Y. 2009); Application of Okla. Nat. Gas. Co., 715 P.2d 477, 478 (Okla. 1985); State v. Stark, 307 P.3d 418, 427–28 (Or. 2013); Ex parte Strom, 539 S.E.2d 699, 702–03 (S.C. 2000); Brake v. Payne, 597 S.E.2d 59, 64 (Va. 2004); State v. Hendrickson, 198 P.3d 1029, 1031– 32 (Wash. 2009) (en banc).

7

Page 8 of 12

cessor in the 1921 Codes had provided that “[t]he common law of England as adopted and under-

stood in the United States shall be in force” in the Virgin Islands, “except as modified by” the

provisions of the Virgin Islands Code).

¶ 12 Frongillo maintains that the Superior Court’s nunc pro tunc order runs afoul of these prin-

ciples. We agree. The order did not supply an omission in the record about what the court did do;

it attempted to accomplish something that the court did not in fact do. Specifically, the order back-

dated confirmation of the marshal’s sale from April 16, 2025, to November 20, 2024. The latter

date is significant only because the Bank filed its motion for confirmation on November 20, 2024;

the court did nothing on that date. Thus, at all times prior to the nunc pro tunc order the record

accurately reflected the Superior Court’s actions—as well as its inaction. The effect of the order

was to give the false impression that the court performed some act on November 20, 2024, and

that is not the purpose of a nunc pro tunc entry. Jenkins, 495 U.S. at 49.

¶ 13 Nor did the nunc pro tunc order attempt to correct a clerical mistake in the record. In fact,

since the Superior Court did not enter anything on the record on November 20, 2024, we cannot

“even conjecture what the errors and mistakes were which it was desirable to correct.” Gray v.

Brignardello, 68 U.S. (1 Wall.) 627, 636 (1863). On the contrary, the order significantly truncated

Frongillo’s time for redemption—a substantive right the duration of which is guaranteed by statute.

See 5 V.I.C. § 496; 28 V.I.C. § 535. The order is quite unlike the nunc pro tunc orders we have

upheld, which fixed mislabeled parties, attached omitted exhibits, or corrected clerical errors of a

similar sort. We recognize that the Superior Court may have thought its “error” was that it ought

to have ruled—or even intended to rule—on the Bank’s motion sooner than it did. If so, a desire

to correct that inaction would be understandable, if not laudable, but a nunc pro tunc entry may

not add anything to the record that the record does not already reflect in some way, even if the

8

Page 9 of 12

court “should have included or intended to include the omission or has a laudatory motive” for

correcting its error. McGuire v. Kenoma, LLC, 447 S.W.3d 659, 663 (Mo. 2014).

¶ 14 The Bank endeavors to ground the nunc pro tunc order in Villanueva v. Daniel, 512 F.2d

308 (3d Cir. 1975), as did the Superior Court. But Villanueva is inapposite.8 Although Villanueva

reviewed a nunc pro tunc confirmation of a statutory marshal’s sale in the Virgin Islands, its hold-

ing rested on a crucial fact that is absent in this case: The judgment debtor in Villanueva contracted

away her statutory right of redemption. She renounced the right in exchange for the purchaser’s

promise to divide the property at issue and convey part of it back to her. Id. at 309. This contract,

Villanueva concluded, altogether determined the propriety of nunc pro tunc confirmation. The

debtor’s statutory redemption rights were “replaced by her rights under the [contract].” Id. at 310.

Indeed, the debtor knew that she was relinquishing her statutory redemption right as consideration

for part of the property while the redemption period was underway because the contract “explicitly

assumed” that confirmation had already taken place. Id. Thus, nunc pro tunc confirmation in Vil-

lanueva would have neither impaired statutory redemption nor altered the rights of the parties, for

the debtor did not so much lose her statutory rights as waive them. Id. In the present case, however,

Frongillo never waived or contracted away that statutory right. Necessarily, then, the nunc pro

tunc order did impair her right of redemption, eliminating over eighty percent of the time Frongillo

was statutorily afforded to invoke it. Given these factual differences, Villanueva is not a case in

point.

8 We also note that the Third Circuit’s interpretations of Virgin Islands statutes, though entitled to great respect, are not binding on this Court. Vlaun v. Briscoe, 2022 VI 18, ¶ 18; Petric v. People, 61 V.I. 401, 409 n.6 (V.I. 2014) (citing Defoe v. Phillip, 56 V.I. 109, 119 (V.I. 2012)).

9

Page 10 of 12

¶ 15 In sum, the mortgage judgment debtor has a statutory right of redemption. 5 V.I.C. § 496;

28 V.I.C. § 535. He may invoke it, assign it, or waive it, as he chooses. 5 V.I.C. § 493(1); 28 V.I.C.

§ 535; Villanueva, 512 F.2d at 309. The statutory text is plain: To invoke the right the debtor need

only pay the marshal the requisite sum within six months. 5 V.I.C. §§ 496, 498; 28 V.I.C. § 535;

Miller v. Sorenson, 67 V.I. 861, 873–74 (V.I. 2017). And the right vests ex proprio vigore; it

attaches without any need for the debtor to contest a creditor’s motion or respond to the court’s

confirmation or await a nunc pro tunc determination. Accordingly, when the Superior Court con-

firmed the marshal’s sale of the Property in April of 2025, Frongillo’s six-month redemption pe-

riod began to run. 5 V.I.C. § 496; 28 V.I.C. § 535. But then the court entered the nunc pro tunc

order at issue, backdating confirmation to November 20, 2024, and substantially shortening Fron-

gillo’s redemption period. The nunc pro tunc order did not correct a clerical mistake. Nor did it

memorialize an order inadvertently omitted from the record on November 20. Instead, it backdated

presently an act the court did not in fact perform on that date; it made the record what it was not.

Cf. Acevedo Feliciano, 589 U.S. at 65. The outright failure of a court to act will not authorize a

nunc pro tunc entry. Recile, 496 F.2d at 680. Villanueva, meanwhile, is harmonious with these

propositions. Just as the court cannot, absent consent, artificially extend the redemption period

once it has been waived or has run, see Villanueva, 512 F.3d at 310, so also the court cannot shorten

it once it has begun. See also Moore v. Meek, 8 Kan. 153, 157–58 (1871) (rejecting creditors’

request to cut off debtor’s right of redemption nunc pro tunc before redemption period had begun

to run). We therefore conclude that the Superior Court’s nunc pro tunc order was in error.

¶ 16 Finally, we address what remains of Frongillo’s redemption period following reversal. The

original confirmation order set October 16, 2025, as the deadline for redemption. The nunc pro

tunc order had the effect of changing the deadline to May 20, 2025. That is a difference of 149

10

Page 11 of 12

days deducted from her redemption period. Having determined that the Superior Court erred in

entering the nunc pro tunc order, we must fashion an appropriate remedy that gives Frongillo the

benefit of the full 149 days that the nunc pro tunc order took away. Therefore, the 149 days shall

begin to run on the date this opinion and the accompanying judgment are entered on the record.

Frongillo may redeem the Property within that time pursuant to statutory procedure. See 5 V.I.C.

§§ 496, 498; 28 V.I.C. § 535. Otherwise, the right of redemption shall expire when the 149 days

elapse.9

III. CONCLUSION

¶ 17 The Superior Court erred in granting the Bank’s motion to amend confirmation of the mar-

shal’s sale nunc pro tunc, the effect of which was to deprive Frongillo of most of the time afforded

by statute to redeem the Property after the sale. Therefore, we reverse the Superior Court’s twin

orders of May 15, 2025, which granted the Bank’s motion and amended confirmation nunc pro

tunc, and we remand with instructions that the 149 days remaining in the redemption period are

hereby restored to Frongillo and shall begin to run from the date this opinion and accompanying

judgment are entered on the record.

Dated this 9th day of March 2026.

9 We note that Frongillo did not post a supersedeas bond or seek a stay pending appeal. See V.I. R. APP. P. 8(b). But the Bank did not object to Frongillo’s failure to do so in its appellate brief, and “issues not adequately presented and briefed are waived.” Miller, 67 V.I. at 867 n.4; accord V.I. R. APP. P. 22(m); Molloy v. Indep. Blue Cross, 56 V.I. 155, 183 (V.I. 2012) (holding that appellees’ failure to brief a matter on appeal waives the matter).

11

Page 12 of 12

BY THE COURT:

/s/ Rhys S. Hodge RHYS S. HODGE Chief Justice

ATTEST:

DALILA PATTON, ESQ. Acting Clerk of the Court

By: /s/ Reisha Corneiro Deputy Clerk II

Dated: March 9, 2026

12