Siwell Inc. d/b/a Capital Mortgage Services of Texas v. Nilsa Ivalisse Bough and Blanche D. Bough as Trustees of the Nilsa P. Bough Revocable Trust and Eden East Property Owners' Association, Inc.

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

SIWELL INC D/B/A CAPITAL Civil No SX 2020 CV 223 MORTGAGE SERVICES OF TEXAS ACTI0N FOR DEBT AND PLAINTIFF FORECLOSURE 0F MORTGAGE V0

NILSA IVALISSE ROUGH AND BLANCHE CITE AS 2022 V‘ SUPER LQA— D ROUGH AS TRUSTEES OF THE NILSA P ROUGH REVOCABLE TRUST AND EDEN EAST PROPERTY OWNERS ASSOCIATION INC DEFENDANTS

Appearances Diana Coada, Esq Rogers Townsend, LLC Charlotte, North Carolina St Thomas, U S Virgin Islands For Plamnfszwell Inc

Earnesta L Taylor, Esq McChain Hamm St Jean, LLP St Croix, U S Virgin Islands For Defendant Nilsa Ivalisse Bough and Defendant Blanche Bough as Trustees ofthe Nilsa P Bough Revocable Trust

MEMORANDUM OPINION AND ORDER WILLOCKS Presiding Judge ' 1 THIS MATTER came before the Court on Plaintiff Siwell Inc d/b/a Capital Mortgage Services of Texas’ (hereinafier “Plaintiff”) motion for service by publication for Defendant Eden East Property Owners’ Association (hereinafter “Eden East”), filed on March 13, 2022 BACKGROUND

'2 On February 10, 2020, Plaintiff filed a complaint against Defendant Nilsa Ivalisse Bough and Defendant Blanche Bough as Trustees of the Nilsa P Bough Revocable Trust (collectively

Smelllnc v NIIsa [18/1358 Bough era! SX 2020 CV 22% Memorandum Opinion and Order 2022 VI SUPERG&~_ Page 2 of 9 hereinafter ‘ Trustees ) and Defendant Eden East in an action for debt and foreclosure of mortgage

In the complaint, Plaintiff alleged, inter alia (i) the following real property was distributed to Defendants Trustees as trustees of the Nilsa P Bough Revocable Trust Plot No 92 of Estate Catherine 5 Hope EastEnd Quarter B,St Croix U S Virgin Islands (hereinafter Property ) (ii) the Property is subject to a first priority mortgage in favor of Plaintiff and (iii) Defendant Eden East may claim subordinate liens upon or legal interest in the Property by virtue of several notices of lien it filed and recorded against said real property (Compl) Various documents including notices of liens Defendant Eden East filed and recorded against the Property were attached as exhibits to the complaint ‘1! 3 Defendant Trustees were served and on April 30 2020 they filed an answer in response to Plaintiff’s complaint ‘14 On May 26, 2020 Plaintiff filed an affidavit of process server Darwin D Dowling (hereinafter Dowling’ ) regarding the service of Defendant Eden East In Dowling s affidavit he indicated that [a]fter due search careful inquiry and diligent attempts was unable to serve on [Defendant Eden East] and that attempts were made on April 7 2020 April 14 2020 April 15 2020 April 20 2020 and April 21 2020 ‘l[ 5 On October 27 2021 Robert P Wood Esq of Roger Townsend LLC and Diana Coada Esq of Rogers Townsend LLC, filed a stipulation for substitution of counsel of record for Plaintiff According to the stipulation Diana Coada Esq is substituted in as counsel of record for Plaintiff and the substitution is an intra firm transfer (Stip ) ‘l[ 6 On March 13 2022 Plaintiff filed this instant motion

Slivell Inc v Nilsa lveltsse Bough et a1 SK 2020 CV 22% Memorandum Opinion and Order 2022 VI SUPER %; Page 1 of 9 STANDARD OF REVIEW

<ll 7 Rule 4 of the Virgin Islands Rules of Civil Procedure (hereinafter Rule 4 ) governs summons and service of process Unless service is waived proof of service must be made to the court VI R CIV P 4(m) see also Title 5 V I C § ll4(a) ' The “service of process unless waived by a general appearance is a prerequisite to the Superior Court obtaining personal jurisdiction over a defendant ” McKenzie v Hess 011 VI Corp 70 VI 210 215 (Super Ct March 6 2019) (quoting Ross v Hodge 58 V I 292 3| 1 n 22 (V I 2013) (quoting Joseph v Daily News Pub Co Inc 57V[ 566 580n4(VI 2012))) seeVI R Ctv P 4(l)(i) Rule4mandates that, “[ilf a defendant is not served within 120 days after the complaint is filed the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time[, b]ut if the plaintiff shows good cause for the failure the court must extend the time for service for an appropriate period VI R Ctv P 4(m) see also Ross 58 VI at 310( In general actual notice of a law suit is not a substitute for proper service and absent proper service a case must be dismissed for lack of

1Title 5 V IC § 114 provides § 114 Proof otservice oi grocess (a) Proof of the service 01 the summons and complaint or 01 the deposit thereot in the post ottice shall be as follow$ (I) If the service or deposit in the post ottice is by the marshal or his deputy the certificate of such officer

(2) It by any other person his attidavit thereof (3) In case of publication the affidavit of the publisher or his representative together with a copy at the publication or

(4) The written admission oi the defendant VI R ClV P 4provides (l)Territorial Limits of Effective Service Serving a summons and complaint or filing a waiver of service satisfies the obligation of service of process sutficient to establish personal jurisdiction over a defendant (1) who is subject to personal jurisdiction in the Superior Court in the Virgin Islands or (2) when authorized by statute VI R CIV P 4(l)(i)

Smelllnc I Nilsalvehsse Bough eta! SX 2020 CV 22% Memorandum Opinion and Order 2022 VI SUPER 5; Page 4 of 9 personal jurisdiction over the defendant ) (citation omitted) However a court must consider

whether good cause exists to extend the 120 day period for service before the court may dismiss a complaint against a party for lack of service Ross 58 VI at 310 see VI R CIV P 4(n) ‘Even if the court finds that no good cause exists to warrant an extension, the court must at least consider whether any other factors warrant a discretionary extension Ross 58 V I at 310 l 1 (II 8 Rule 4 I of the Virgin Islands Rules of Civil Procedure (hereinafter “Rule 4 l ) governs service by publication Rule 4 1 provides that [w]hen service of the summons and complaint cannot be made as prescribed in Rule 4 and the requirements set forth in 5 V IC § 112(a) for obtaining substituted service by publication are established by affidavit and the prerequisites stated in that statute are satisfied the court may grant an order that service be made by publication in accord with the provisions of that statute VI R CIV P 4 I(a) Title 5 V IC § 1|2(a) provides in pertinent part that service by publication is proper [w]hen service of the summons cannot be made as prescribed in Rule 4 [] and the defendant after due diligence cannot be found within the Virgin Islands Title 5 V I C § 1 12(a)

DISCUSSION

‘][ 9 In its memorandum in support of its motion Plaintiff argued that Plaintiff ‘has satisfied the legal requirements for service by publication on Defendant Eden East (Memo p 1 )Plaintiff made the following assertions in support of its argument (i) [n the instant case the defendant could not be located and service cannot be made as prescribed by Rule 4 (Id ) (ii) Plaintiff attempted to serve [Defendant Eden East] at the last known address but could not locate the defendant (Id) (iii) Further attempts to contact by phone were unsuccessful (Id) and (iv) Plaintiff has searched property records obituaries and other on line databases but despite due diligence Plaintiff has been unable to obtain the current address or whereabouts of [Defendant

Smelllnc v Nt/salvelisse Bough eta! SX 2020 CV 223 Memorandum Opinion and Order 2022 VI SUPER A Page 5 of 9 Eden East] (Id at pp 1 2 ) A copy of an affidavit of Diana Coada Esq counsel of record for

Plaintiff dated February 7 2022, was attached to motion and memorandum in support thereof ‘1[ 10 There are several issues the Court will address along with Plaintiff’s motion for service by publication for Defendant Eden East 1 October 27, 2021 Stipulation ‘][ l I The Court will grant the October 27 2021 stipulation for the intra firm substitution Diana Coada Esq will be substituted in as counsel of record for Plaintiff 2 Extension of Time for Service ‘]l 12 Interestingly, Plaintiff never addressed the issue that over two years have passed since Plaintiff filed its complaint and Defendant Eden East still has not been served Under Rule 4(n) Defendant Eden East should have been served on or before June 9, 2020 or the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time V I R Clv P 4(n) Nevertheless before the Court dismisses without prejudice the case against Defendant Eden East the Court will consider whether good cause or any other factors warrant a discretionary extension 2 Standard of Review

‘l[ 13 In the context of service of process courts have considered three factors in determining the existence of good cause (1) reasonableness of plaintiff‘s efforts to serve (2) prejudice to the defendant by lack of timely service and (3) whether plaintiff moved for an enlargement of time to serve prior to the expiration of the period prescribed by the rule McKenzie 70 V I at 216 (quoting Charles v Woodley 47 V I 202 210 (Super Ct 2005) (quotation marks brackets and citations

omitted)) In all instances however it is the plaintiff‘s burden to show good cause Id (quoting Beachstde Assocs LLC v Fishman 53 V I 700 713 (V I 2010)) As noted above, ‘[e]ven if the

Smell Inc v Nilsa IVEIISSL’ Bough er a1 SK 2020 CV 22% 31 Memorandum Opinion and Order 2022 VI SUPER Page 6 of 9 court finds that no good cause exists to warrant an extension the court must at least consider

whether any other factors warrant a discretionary extension Ross, 58 VI at 3l0 11, see also Beachstde Assocs LLC 53 VI at 7l7 18 (“In other words the trial court has discretion as to whether it will ultimately grant or deny a permissive extension under FRCP 4(m) but the court lacks discretion to refuse to at least consider the appropriateness of such an extension ) [C]ourts must consider a discretionary extension when the statute of limitations bars the filing of a new complaint McKenZIe 70VI at218 (citing Beachszde Assocs LLC 53 VI at7l8 Nevertheless the Court can still ‘ deny a discretionary extension of time even if the statute of limitations would bar a plaintiff from re filing its claims Id (citing Petrucellt 46 F 3d at 1306 Boley v Kaymark 123 F 3d 756 759 (3d Cir 1997)» (ll 14 Regarding the first factor of the good cause analysis the reasonableness of Plaintiff‘s efforts to serve although Plaintiff was diligent in its initial effort to serve Defendant Eden East in April 2020 no further efforts were made until now almost two years later, when Plaintiff filed a motion for service by publication Thus this factor does not support a finding of good cause Regarding the second factor the prejudice to Defendant Eden East by lack of timely service the Court has no information to consider here because Defendant Eden East has not appeared or filed anything in this matter The Court is left to speculate how the delay would be prejudicial Thus, this factor is neutral Regarding the third factor whether Plaintiff moved for an enlargement of time to serve prior to the expiration of the period prescribed by the rule Plaintiff never moved for an extension of time to serve Defendant Eden East Thus this factor does not support a finding of good cause Having considered all the factors and finding two factors weighing against finding of good cause and one factor neutral the Court cannot find good cause for Plaintiff’s failure to serve Defendant Eden East See McKenzie 70 V I at 218 (quoting Beachszde

Smell Inc v Nilsa Iveltsse Bough e! a! SX 2020 CV 223 3‘

Memorandum Opinion and Order 2022 VI SUPER % Page 7 of 9 Assam LLC 53 VI at 713 (quoting MCI Telecomms Corp v Teleconcepts Inc 71 F 3d 1086

1097 (3d Cir l995))) ( [T]he absence of prejudice alone can never constitute good cause to excuse late service Instead, prejudice may tip the good cause scale [but] the primary focus is on the plaintiff‘s reasons for not complying with the time limit in the first place ) However, the Court 3 analysis does not end here the Court must determine if there are other factors that may warrant an extension ‘|[ 15 Here Defendant Eden East as the holder of subordinate liens upon or legal interest in the Property is required to be made a defendant in this foreclosure action under Title 28 V I C § 532 ‘ At this time in the interest of judicial efficiency rather than dismiss without prejudice the case against Defendant Eden East and have Plaintiff re file against Defendant Eden East or moving to join Defendant Eden East as a required patty ‘ the Court will grant a discretionary extension of time for Plaintiff to serve Defendant Eden East Plaintiff is cautioned that further delay in service may result in the dismissal of this case against Defendant Eden East 3 Motion for Service by Publication ‘|[ 16 Rule 4(h) governs service of a corporation partnership or association and Rule 4(h)(3) governs service when service cannot be made as prescribed in Rule 4(h) In its complaint Plaintiff simply identified Defendant Eden East as Eden East Property Owners’ Association’ and did not indicate Defendant Eden East’s entity type However a review of the notice of lien, recorded on June 27 2007 and attached to the complaint as Exhibit G revealed that Defendant Eden East is a corporation to wit ‘ Eden East Property Owners Association Inc ’ Rule 4(h)(3) provides that

3 Title 28 V l C § 532 provides that [a]ny person having a lien subsequent to the plalntttt upon the same property or any part thereof, or who has given a promissory note or other personal obligation tor the payment of the debt or

any part thereof secured by the mortgage or other lien which is the subject of the action shall be made a defendant in

the action Title 28 V I C § 532 4 Assuming without deciding that re filing or moving to join are viable options here

Smell Inc t Ntlsa [teluse Bough e! a! SX 2020 CV 223 Memorandum Opinion and Order 2022 V1 SUPER $1 Page 8 of 9 [i]f legal process against a corporation limited liability company, partnership or other association

cannot by due diligence be served upon any person authorized to receive it such process including the complaint, may be served in duplicate upon the Lieutenant Governor pursuant to Title 13 of the Virgin Islands Code, which service shall be effective for all purposes of law V I R CIV P 4(h)(3) see also Title 13 V I C § 348 ( In case legal process against a corporation cannot by due diligence be served upon any person authorized to receive it, such process including the complaint may be served in duplicate upon the Lieutenant Governor, which service shall be effectual for all purposes of law ) There is no record that Plaintiff attempted to effectuate service upon Defendant Eden East via the Lieutenant Governor As such there lacks sufficient evidence that “service of the summons and complaint cannot be made as prescribed in Rule 4 and the requirements set forth in 5 V I C § 1 12(a) Accordingly it is not proper for Defendant Eden East to be served by publication at this juncture and the Court will deny Plaintiff’s motion for service by publication for Defendant Eden East The Court will order Plaintiff to file proof of service advising the Court that Plaintiff has complied with Title 13 V IC § 348 and Defendant Eden East has been served via the Lieutenant Governor 4 Amend Caption ‘II 17 Pursuant to Rule 15 2 of Virgin Islands Rules of Civil Procedure 5 the Court will amend the caption to reflect Defendant Eden East 5 entity type

5 Rule 15 2 of Virgin Islands Rules of Civil Procedure provides that [t]he court may amend any process or pleading for any omission or defect therein or for any variance between the complaint and the evidence adduced at the trial VI R CW P 15 2

Smell Inc v Nilsa Ivelt'sse Bough er a! SX 2020 CV 22% A Memorandum Opinion and Order 2022 v1 SUPER 3 Page 9 01 9

CONCLUSION

Based on the foregoing it is hereby ORDERED that the October 27 2021 stipulation for substitution of counsel of record for Plaintiff is GRANTED Diana Coada Esq shall be and is hereby the counsel of record for Plaintiff ORDERED that a DISCRETIONARY EXTENSION of time for Plaintiff to serve Defendant Eden East is GRANTED The deadline for Plaintiff to serve Defendant and file the proof of service thereto is extended to April 15, 2022 It is further ORDERED that on or before April 15, 2022 Plaintiff shall file proof of service advising the Court that Plaintiff has complied with Title 13 V I C § 348 and that Defendant Eden East has been served via the Lieutenant Governor Plaintiff is notified that failure to comply may result in the dismissal of this case against Defendant Eden East It is further ORDERED that Plaintiff’s motion for service by publication for Defendant Eden East filed on March 13 2022 is DENIED And it is further ORDERED that the CAPTION IS AMENDED to reflect Defendant Eden East Property Owners Association Inc in place of Defendant Eden East Property Owners Association ’ and all future filings shall so reflect “k DONE and so ORDERED this (93 day of March 2022

ATTEST W& >(M Tamara Charles HAROLD W L WILLOCKS Clerk of the Court Presiding Judge of the Superior Court

Court C16 '72“ Dated Q 90 a

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

SIWELL INC. DBA CAPITAL MORTGAGE Case Number: SX-2020-CV-00223 SERVICES OF TEXAS, Action: Debt And Foreclosure Plaintiff

v.

NILSA I BOUGH et al, Defendant.

NOTICE of ENTRY

of

Memorandum Opinion and Order To: Diana Coada, Esq. Earnesta L. Taylor

Please take notice that on March 23, 2022 a(n) Memorandum Opinion and Order dated March 23, 2022 was/were entered by the Clerk in the above-titled matter.

Dated: March 23, 2022 Tamara Charles Clerk of the Court

By:

Janeen Maranda

Court Clerk II