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FIRSTBANK PUERTO RICO, N THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN ) ) ) CASE NO. ST-12-CV-239 Plaintiff, v. ) ) ACTION FOR DEBT, ) FORECLOSURE OF EDMOND WEBSTER a/k/a EDMOND R. WEBSTER, ) LIENS, and SPECIFIC BERNICE WEBSTER, CLEVE E. WEBSTER a/k/a’) PERFORMANCE CLEVE WEBSTER, OASIS DEVELOPMENT, LLC, ) and TRIUMPH DEVELOPMENT, LLC, ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court are Defendants’ motion for reconsideration! and motion to vacate.” F informational or the following reasons, the Court will order Defendants to file an motion. FACTUAL AND PROCEDURAL HISTORY On March 6, 2013, this Court issued summary judgment in favor of Plaintiff for the principal, March 21, 20 motion to enfi interest and costs under the 2008, 2009, and 2010 construction loans. On 13, the Court issued a Memorandum Opinion granting in part Plaintiffs brce an assignment of leases and rents. On March 7, 2014, the Court issued an Order certilfying the March 6, 2013, Order as a final judgment. In the reconsideratia STANDARD Virgin Islands, there are several rules that apply to a motion for in. LRCi 7.3 provides that a motion for reconsideration: > The motion for ? The motion to 2013, Order. reconsideration, filed on March 21, 2014, challenges the March 7, 2014, Order. acate, filed on May 27, 2014, challenges the March 6, 2013, Order and the March 21, FirstBank Puer to Rico v. Webster, et al. Case No. ST-12-CV-239 Memorandum Page 2 of 5. Opinion, June 13, 2014 shall be filed within fourteen (14) days after the entry of the order or decision unless the time is extended by the Court ... A motion to reconsider shall be based on: 1. intervening change in controlling law; 2. availability of new evidence, or; 3. the need to correct clear error or prevent manifest injustice. Superior Court Rule 50 establishes that a court “may set aside an entry of default, judgment by to 61 of the } Rule 50. Und days after the 1, default, or judgment after trial or hearing” for good cause shown. Rules 59 ederal Rules of Civil Procedure govern the application of Superior Court er Fed. R. Civ. P. 59, a motion for a new trial “must be filed no later than 28 entry of judgment.” Fed. R. Civ. P. 60(b) provides that a court may grant relief from final judgment, order or proceeding upon a showing of: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. A party has only a year to file after the entry of judgment under Fed. R. Civ. P. 60(b)(1) thru (3) and 4 Virgin Islands days of the on 1 reasonable time for subsections (4) thru (6). The Supreme Court of the has determined that “[i]f a motion for reconsideration is brought within ten der to be reconsidered, the motion is to be treated as a Federal Rule 59(e) motion to altdr or amend judgment.” In addition, courts must “consider the motion to 3 Ruiz v. Jung, Civ . No. 2008-035, 2009 WL 3568182, at *3 (V.I. Oct. 19, 2009). FirstBank Puert Case No. ST-12 Memorandum Page 3 of 5. reconsider as ten days of th ‘0 Rico v. Webster, et al. LCV-239 Opinion, June 13, 2014 one brought pursuant to Federal Rule 60(b)” if the motion is brought after t order to be reconsidered.* ANALYSIS Defendants’ motion to vacate was signed by Cleve Webster, pro se, Edmond Webster, pro the Websters, the Websters vice, they are Oasis Develog be, and Bernice Webster, pro se, but the motion was brought on behalf of Oasis Development, LLC, and Triumph Development, LLC. Unless one of S an attorney licensed to practice in the Virgin Islands or admitted pro hac hot authorized to file legal documents in this Court on behalf of Defendants ment, LLC, and Triumph Development, LLC.° Similatly, the motion for reconsideration was signed by Cleve Webster, pro se, but was subn} licensed to prd file the motio Webster, Oasi In add Court,’ reflec as a ghost wril itted on behalf of all Defendants. Unless Cleve Webster is an attorney ctice in the Virgin Islands or admitted pro hac vice, he is not authorized to h for reconsideration on behalf of Defendants Edmond Webster, Bernice s Development, LLC, and Triumph Development, LLC.° tion, both motions, as well as other recent submissions filed before the that one or more of the Websters is an attorney or has an attorney serving ter. In fact, in the motion to vacate, the Websters admit that “Defendants and legal consultants have examined the Court’s rules and the findings of the March 6, “id. * See 4 V.1.C. § 44 ® See 4 V.I.C. § 44 ” See Defendants filed on April 1, 2 2014; Defendant reconsideration Defendants’ mot! Development, LL' 13. 13, motion to stay filed on April 1, 2014; Defendants’ motion for an emergency hearing 014; Defendants’ reply to Plaintiff's supplemental to informational motion filed on June 6, ’ reply to Plaintiffs opposition to, and motion to strike, Defendants’ motion for iled on April 22, 2014; Defendants’ reply to Plaintiff's opposition to, and motion to strike, ion to stay filed on April 29, 2014; Defendants’ motion to dismiss Defendant Triumph t . filed on May 27, 2014. FirstBank Puer Case No. ST-12| Memorandum Page 4 of 5. 2013, Order u of the implied The “ litigants desig substantive ru P. 11 which sufficient gro se party “the skews the pro As ar the Court stati or Edmond W jurisdiction of who assisted filing in this n ‘o Rico v. Webster, et al. -CV-239 Opinion, June 13, 2014 holding a contract provision that is so egregious as to amount to a breach covenant of good faith and fair dealing ...”* practice of ghost-writing legal documents to be filed with the Court by inated as proceeding pro se is inconsistent with the procedural, ethical and les” of this Court.” Ghost writing “frustrates the application of Fed. R. Civ. requires all attorneys to verify through their signatures that there are inds for the arguments in their pleadings.”'° This practice also gives a pro unwarranted advantage of having a liberal pleading standard applied and bess to the distinct disadvantage of the nonoffending party.” esult, by June 30, 2014, the Websters shall file a sworn memorandum with ng the following information: (1) whether Cleve Webster, Bernice Webster, febster is or has been licensed to practice law in the Virgin Islands or any the United States of America; and (2) the identity of the “legal consultants” the Websters in preparation of the motion to vacate and any other recent hatter.'? Failure to comply with this directive shall result in sanctions. 5 Motion to Vacate, at page 3. * Laremont-Lopé Greene v. U.S. D z v. Se. Tidewater Opportunity Ctr., 968 F.Supp. 1075, 1080-81 (E.D.Va.1997). See also pp't of Educ., 4:13CV79, 2013 WL 5503086 (E.D. Va. Oct. 2, 2013) aff'd, 14-1006, 2014 WL 2443788 (4th Cir. June 2, 2014) (“it is improper for lawyers to draft or assist in drafting complaints or other document %0 Karpov v. Karp *! Wesley v. Dor » See the filings & submitted to the Court on behalf of litigants designated as pro se”). ov, CIV. 12-1411-GMS, 2013 WL 653965 (D. Del. Feb. 20, 2013). Stein Buick, Inc., 987 F.Supp. 884 (D.Kan.1997). listed in footnote seven. FirstBank Puerto Rico v. Webster, et al. Case No. ST-12-CV-239 Memorandum Opinion, June 13, 2014 Page 5 of 5. An Order consistent with this Opinion shall follow. Dated: June AF 2013 EES HON. MICHAEL C. DUNSTON ATTE Estrella George JUDGE OF THE SUPERIOR COURT Cting Clerk of Co / OF THE VIRGIN ISLANDS ionovan D novan Court Clerk Shpervisor , Lt [IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN FIRSTBANK PUERTO RICO, ) ) Plaintiff, ) CASE NO. ST-12-CV-239 Vv. ) ) ACTION FOR DEBT, ) FORECLOSURE OF EDMOND WEBSTER a/k/a EDMOND R. WEBSTER, ) LIENS, and SPECIFIC BERNICE WEBSTER, CLEVE E. WEBSTER a/k/a =) PERFORMANCE CLEVE WEBSTER, OASIS DEVELOPMENT, LLC, ) and TRIUMPH DEVELOPMENT, LLC, ) ) Defendants. ) ) ORDER The Court having issued a Memorandum Opinion on this date, it is ORDH with the Cow Webster, or 5 or any jurisdi consultants” ¥ other recent fil ORDH it is RED that by June 30, 2014, the Websters shall file a sworn memorandum tt stating the following information: (1) whether Cleve Webster, Bernice dimond Webster is or has been licensed to practice law in the Virgin Islands ction of the United States of America; and (2) the identity of the “legal who assisted the Websters in preparation of the motion to vacate and any ling in this matter; ! and it is RED that the failure to comply with this Order shall result in sanctions; and * See the filings | sted in footnote seven in the Memorandum Opinion. Firstbank v. Webster, et al. Case No. ST-13-CV-239 Order, June 13), 2013 ORDERED that a copy of this Order and the accompanying Memorandum Opinion shall|be directed to the parties and counsel of record. Dated: June AF, 2014 ee HON. MICHAEL C. DUNSTON ATTEST: Estrella George ° JUDGE OF THE SUPERIOR COURT of / / OF THE VIRGIN ISLANDS Dep. ¥y-Donna D. Doxovan i) Court Clérk Supervisor’ AO 1 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN FIRSTBANK PUERTO RICO, ) ) Plaintiff, ) CASE NO. ST-12-CV-239 v. ) ) ACTION FOR DEBT, ) FORECLOSURE OF EDMOND WEBSTER a/k/a EDMOND R. WEBSTER, ) LIENS, and SPECIFIC BERNICE WEBSTER, CLEVE E. WEBSTER a/k/a.) PERFORMANCE CLEVE WEBSTER, OASIS DEVELOPMENT, LLC, ) and TRIUMPH DEVELOPMENT, LLC, ) ) Defendants. ) ) MEMORANDUM OPINION Pending before the Court is Plaintiff's renewed motion for partial summary judgment.! F On Sé¢ principal am Defendants e| r the following reasons, Plaintiff's motion will be granted. FACTUAL AND PROCEDURAL HISTORY ptember 5, 2007, Defendants executed a Note promising to pay Plaintiff a unt of $275,000.00 in monthly installments of $1,946.43. The same day, kecuted a second Note for the principal amount of $400,000.00 payable in monthly instdllments of $2,831.17.? On September 6, 2007, Plaintiff recorded a Mortgage against Parcel and recorded $275,000.00 adjusting Def t No. 1X-1-D Estate Wintberg, St. Thomas to secure the $400,000.00 loan a Mortgage against Parcel No. 1X-1-H Estate Wintberg to secure the loan.* On September 30, 2011, the parties modified the 2007 Notes, endants’ monthly payment on the $275,000.00 Note to $2,080.68 beginning * Plaintiff filed its motion on March 22, 2013. ? Exhibit 7. The 3 Exhibit 8. The * Exhibit 9. Note lists Parcel No. 1X-1-H Estate Wintberg, St. Thomas as a heading. Note lists Parcel No. 1X-1-D Estate Wintberg, St. Thomas as a heading. FirstBank v. Webster, et al. Case No. ST-12 Memorandum on December -CV-239 Opinion, June 12, 2014 1, 2011, and adjusting the monthly payment on the $400,000.00 Note to $3,017.23 beginning on November 1, 2011.° On March 27, 2012, Plaintiff submitted a Notice of Def: the terms of t $3,775.84 to ault demand letter to Defendants indicating that they were in default under lhe $275,000.00 Note and had until April 26, 2012, to make a payment of cure their default, failing which Plaintiff “may, at its option, declare all sums ... imnhediately due and payable without further demand.”© On the same day, Plaintiff sent $5,472.10 by a similar letter concerning the $400,000.00 Note, requiring a payment of April 26, 2012. Given that Defendants did not cure the debts during the time specified, Plaintiff filed its Complaint on May 11, 2012, and filed a motion for summary judgment on November 8, 2012. In the Statement of Facts accompanying its motion, Plaintiff asserted that “Defendants have made no mortgage payments under the Notes since their last payment of $11,000.00 they had mad and a paymen on December 17, 2010.”’ In response, Defendants provided evidence that p a payment of $3,995.00 on December 31, 2012, for Parcel No. 1X-1-D, ® tt of $2,807.00 on January 15, 2013, for Parcel No. 1X-1-H to FirstBank.’ Defendants aso submitted several other proofs of payments as exhibits to their Counterstatem summary judg had submitted] ent of Undisputed Material Facts. The Court denied Plaintiffs motion for ‘ment concerning the 2007 Notes on March 6, 2013, because Defendants evidence of payments made under the Notes that were unacknowledged in * Exhibit 10. The Notes. * See Notice of D regarding the $2 ” Statement of Fd * Defendants’ Ex * Defendants’ Ex Modification of the Note incorporated by reference the default provisions of the 2007 Pfault letter regarding the $400,000.00 Note, at page 2; see also Notice of Default letter ¥5,000.00 Note. cts, at J 34. nibit Z-5. nibit Z-6. FirstBank v. W bbster, et al. Case No. ST-12-CV-239 Memorandum Plaintiff's St Plaintiff faile Opinion, June 12, 2014 atement of Facts accompanying its motion. '° The Court also noted that d to send Defendants a notice of acceleration prior to filing the Complaint. On March 24, 2014, the Court held a hearing to determine the extent of Defendants’ payments against the mortgages. The Court heard testimony from Plaintiffs witness Hansley Thamas who gave sworn testimony concerning the exhibits attached to Plaintiff's rerlewed motion for summary judgment. The Court also heard testimony from Defendant Cl eve Webster. STANDARD Fed. R. Civ. P. 56 provides that summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In considering a motion for summary, underlying facts in the light most favorable to the non-moving party. “genuine” if to that issue.'P The 2 judgment, a court must “draw ... all reasonable inferences from the »Il An issue is a reasonable jury could possibly hold in the non-movant’s favor with regard ANALYSIS 007 Notes each have a provision in them stating that in the event of default, Plaintiff “may” send Defendants written notice of default and, if the overdue amount is not paid with in 30 days, Defendants may be required to immediately pay the principal The Court als ” Battaglia v. M "2 Andersen v. I b granted Plaintiffs motion with respect to a separate set of construction loans. f{cKendry, 233 F.3d 720, 722 (3d Cir. 2000). iberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). FirstBank v. Webster, et al. Case No. ST-12-CV-239 Memorandum|Opinion, June 12, 2014 amount of the loan.'? The Notes also indicate that the Security Instrument associated with the Note “describes how and under what conditions [Defendants] may be required to make immedjate payment in full of all amounts [they] owe under th[e] Note.”!* Both Mortgages indicate that in the event of default, Plaintiff “shall” give Defendants notice thereof and a/period of not less than thirty days to cure the default. The Mortgages also state that if Defendants fail to cure the default, Plaintiff “may require immediate payment in full of all gums secured by the [Mortgage] without further demand and may foreclose the [Mortgage] by judicial proceeding.” '> The Notes also have identical provisions pertaining to |a “notice of acceleration.”!* In the event the mortgaged properties were “sold or transferred,” Plaintiff could require “immediate payment in full of all sums secured” by the Mortgage. The Notes state further that “[i]f [Plaintiff] exercises this option [and requires immediate payment in full of all sums], [Plaintiff] shall give [Defendants] notice of acceleration.”'” The notice of acceleration “shall provide a period of not less than 30 days from the date the notice is given ... within which [Defendants] must pay all sums secured by the [Mortgage, failing which Plaintiff] may invoke any © remedies ... without further notice or demand on [Defendants].”!® Given that the secured properties were not transferred or sold, the Court finds that the notice of acceleration provisions in the Notes were not triggered. As a result, Plaintiff needed only td submit a notice of default to Defendants and give them thirty days to cure * Exhibit 7, at 46, and Exhibit 8, at 16. * Exhibit 7, at 4 40, and Exhibit 8, at 4 10. * Exhibit 9, at at Ml 22. © Exhibit 7, at 9 10, and Exhibit 8, at 4] 10. 17 Id. 8 id, FirstBank v. Webster, et al. Case No. ST-12+CV-239 Memorandum the default b proceedings.'? Opinion, June 12, 2014 tfore accelerating the debt without further demand and initiating judicial Moreaver, Defendants submitted no evidence that they cured their default between Marth 27, 2012, and April 26, 2012. Rather, the earliest evidence of a payment made by Def endants was in June of 2012 after the Complaint was filed. In addition, the payments Defendants made between June of 2012 and January of 2013 only total an amount of $55,747.00, which is well below the principal amounts due under the Modification lof Note. Nevertheless, because it was not clear whether Plaintiff accounted for all the payments De fendants made against the mortgage, the Court initially denied Plaintiff's motion for summary judgment and scheduled the matter for a hearing. At the March 24, 2014, hearing Plaintiff's witness Hansley Thomas provided credible testimony indicating that Plaintiff\s exhibits accounted for each of Defendants’ payment receipts present in Defendants’ Exhibits Z-5 and Z-6. And, Defendants did not provide any testimony or submit any evidence rebutting Plaintiffs evidence. Construing the facts in the light most favorable to Defendants, there is no genuine issue of material fact that Defendants are in default and no issue of fact concerning the amount of debt that Defendants owe Plaintiff. Accordingly, Plaintiff is entitled to judgment as 4 1 matter of law. * The Complain 32. it indicates that indebtedness due under the Notes were accelerated. See Complaint, at 7 — FirstBank v. Webster, et al. Case No. ST-12-CV-239 Memorandum|Opinion, June 12, 2014 An Order consistent with this Opinion shall follow. Dated: June 2, 2013 NMS ATTEST: Estrella Georg: JUDGE OF THE SUPERIOR COURT Actip g f Co, OF THE VIRGIN ISLANDS UX Y)} L 4h, nna D. Donovan /} Court Cl Supervisor GiNDLt [N THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN FIRSTBANK PUERTO RICO, ) ) Plaintiff, ) CASE NO. ST-12-CV-239 ) ) ACTION FOR DEBT, ) FORECLOSURE OF EDMOND WEBSTER a/k/a EDMOND R. WEBSTER, ) LIENS, and SPECIFIC BERNICE WEBSTER, CLEVE E. WEBSTER a/k/a’) PERFORMANCE CLEVE WEBSTER, OASIS DEVELOPMENT, LLC, ) and TRIUMPH DEVELOPMENT, LLC, Defendants. Nee Nee ee ee ORDER The Court having issued a Memorandum Opinion on this date, it is ORDERED Plaintiff's motion for partial summary judgment is GRANTED; and it ORDERED that a copy of this Order and the accompanying Memorandum Opinion shall|be directed to the parties and counsel of record. Dated: June he, 2014 ee en ee HON. MICHAEL C. DUNSTON ATTEST: Estrella George JUDGE OF THE SUPERIOR COURT A OF THE VIRGIN ISLANDS upervisor lo! LUE