Pankki v. Allen-Williams Corp.
| Decision Date | 04 June 1998 |
| Docket Number | No. Civ.1995–23.,Civ.1995–23. |
| Citation | 39 V.I. 220 |
| Parties | SAASTOPANKKIEN KESKUS–OSAKE PANKKI (SKOPBANK); and Government Guarantee Fund of the Republic of Finland, Plaintiffs, v. ALLEN–WILLIAMS CORP.; Monica Boyd–Richards; AW Landvest, Inc.; Concrete Engineering Corp.; Albert Shikiar; Sue K. Marsh; Nicholas Gileta; Kenneth C. Wiley; Linda Wiley; Theodore S. Miazga; Adrienne C. Miazga; Jack H–N Tseng; Fay Chin Tseng; Christian P. Biernazki; Sandra L. Biernazki; Horacio H. Campolieto; Dinorah Campolieto; Richard Lang; Tandem, Inc.; Masonry Products, V.I. Corp.; Grand Development, Inc.; Scott J. Dixon; Stanley T. Carter, II; James Boubon; John Dalinghaus; Bobbie Lou Nailing; Ghi Hotel Management, Inc.; Gib Gab Uniforms, Ltd.; Hillside Syndicate; Advent Investment Corp.; Drake Limited; The Government of the U.S. Virgin Islands; Paul A. Marshall; and Maureen J. Marshall, Defendants. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
Mortgagee brought foreclosure action, and moved for summary judgment. Holders of easement interests on property opposed motion. The District Court, Brotman, J., held that: (1) judicial estoppel did not preclude mortgagee from challenging effectiveness of subordination agreement, and (2) easement holders' mere assertions that prior proceeding in which easements were held to be inferior to mortgage involved different property were insufficient to preclude summary judgment.
Motion granted.
Hunter Colianni Cole & Turner, Christiansted, St. Croix, U.S. V.I. by Warren B. Cole, for plaintiff Skopbank.
Watts Streibich & Benham, Charlotte Amalie, St. Thomas, U.S.V.I. by John H. Benham, III, for defendant Tandem, Inc.
In a prior proceeding captioned Saastopankkien Keskus–Osake–Pankki (“Skopbank”) and the Government Guarantee Fund of the Republic of Finland (“GGF”) v. Great Cruz Bay Dev. Co., Inc., et. al., Civ. No.1991–355 (D.V.I. June 8, 1993), aff'd,74 F.3d 1227 (3d Cir.1995) (hereinafter “ Skopbank I ”), this Court held that certain easements claimed by defendant A–W Landvest, Inc. (“Landvest”), as embodied in a 1990 Grant in Easement (“the 1990 Grant”) and a 1990 Reciprocal Easement Agreement (“the 1990 REA”) were inferior to mortgages held by Saastopankkien Keskus–Osake–Pankki (“Skopbank”) and the Government Guarantee Fund of the Republic of Finland (“GGF”) (“plaintiffs”). Id., slip op. at 15. The Court concluded that because plaintiffs' mortgages were superior to Landvest's easement rights, such rights would be extinguished upon foreclosure. Id.1
In the within action, styled as Saastopankkien Keskus–Osake–Pankki (“Skopbank”) and the Government Guarantee Fund of the Republic of Finland (“GGF”) v. Allen–Williams Corp., et al., Civ. No.1995–23 (“ Skopbank II ”) this Court entered a Consent Judgment of foreclosure against numerous defendants therein on February 17, 1995 in the principal amount of $2,444,847.82 and for accrued and unpaid interest owing as of December 31, 1994 in the amount of $25,263.43, together with interest thereon in the amount of $814.95 per diem from and after December 31, 1994. Consent Judgment; Pls.' Exh. B. Tandem, Inc. (“Tandem”) and several other defendants were not covered by the Consent Judgment at the time it was entered. As such, a foreclosure sale of such property was never consummated.
Presently before the Court is plaintiffs' motion for summary judgment pursuant to FED.R.CIV.P. 56 for the foreclosure of the property interests of Nicholas Gileta, Theodore S. Miazga, Adrienne C. Miazga, Jack H–N Tseng, and Fay Chin Tseng (“the Gileta Defendants”); Tandem, Masonry Products, V.I. Corp. (“Masonry Products”), Drake Limited (“Drake”) (collectively “the Easement defendants”); and the Government of the Virgin Islands (“the Government”). Foreclosure of the interests of all parties other than the Easement defendants have been resolved either by consent or default judgment (as noted above), Pls.' Exh. B and C, and all counterclaims in this case either have been withdrawn or dismissed, Pls.' Exh. K, L, M. Tandem is the only party opposing plaintiffs' motion.2 In its opposition brief, Tandem also cross-moved to defer consideration on the motion, claiming a need for further discovery. The Court heard oral argument on these motions on April 11, 1997 and granted Tandem's motion for an extension of time to complete discovery. See Order of April 17, 1997.3 The Court heard further argument on plaintiffs' summary judgment motion on March 17, 1998.4 Plaintiffs' motion is the last outstanding piece in this foreclosure litigation. For the following reasons, the Court grants this motion for summary judgment.
II. Factual Background
Plaintiff Skopbank is the mortgagee and creditor, by mesne assignment, of the following mortgage:
Construction Mortgage Security Interest and Security Agreement from Allen–Williams Corp., an Ohio corporation, to R.H. Jones Abstract and Title Guaranty Company, as Trustee for Master Mortgage Fund Trust VII for $2,000,000.00 dated July 5, 1988, recorded August 11, 1988 in Book 32–Q, page 184, Document No. 1165; as modified by Mortgage Modification dated August 26, 1988, recorded August 31, 1988 in Book 32–S, page 224, Document No. 1214; as assigned to Master Mortgage Fund, Inc. by Sale and Assignment of Note and Mortgage dated December 28, 1988, recorded March 10, 1989 in Book 33–T, page 127, Document No. 457; as further modified by Mortgage Modification dated April 27, 1989, recorded March 15, 1990 in Book 35–O, page 327, Document No. 400; as increased to $2,557,444.63 and modified by Extension and Modification Agreement dated May 1, 1990, recorded June 28, 1991 in Book 37–T, page 233, Document No. 684; as assigned to Saastopankkien Keskus–Osake–Pankki (Skopbank) by Assignment of Note, Mortgage and Liens from Master Mortgage Investment Fund, Inc. dated November 23, 1992, recorded June 10, 1993 in Book 41–H, page 259, Document No. 1265. (NOTE: Same document also recorded November 02, 1993 in Book 41–Z, page 451, Document No. 2181.) (Plots 479–A and 479–B, Estate Chocolate Hole AND Unit 4312, Virgin Grand Villas.)
Aff. of Kathleen R. Grilley, Pls.' Exh. J. The mortgage is an encumbrance upon the following real property:
Property A: Parcels No. 479A and 479B, Estate Chocolate Hole, No. 11 Cruz Bay Quarter, St. John, U.S. Virgin Islands, being 7.1783 acres, more or less, as shown on PWD No. D9–4224–T88; and
Property B: That volume of space with the portion of the structure therein contained known and designated as:
—————
being the Seasonal Ownership Interests and Periods of Use in the condominium Unit listed above, which condominium and Unit are located upon that portion of Parcel No. Remainder 479 Estate Chocolate Hole, No. 11 Cruz Bay Quarter, St. John, U.S. Virgin Islands being 12.2971 acres, more or less, as shown on PWD No. D9–4224–T88, and are created by the Declaration Establishing a Plan for Condominium Ownership of Virgin Grand Villas—St. John Condominium, St. John, U.S. Virgin Islands pursuant to Chapter 33, Title 28 Virgin Islands Code, and in the Floor Plan attached thereto, dated February 29, 1988, recorded March 10, 1988 in Book 31–U Page 147 No. 211 and indexed in Aux 21(h) Page 185 (hereinafter the “Declaration”) as amended and supplemented by and subject to a First Supplemental Declaration Establishing a Seasonal Ownership Plan for Condominium Ownership of Virgin Grand Villas—St. John Condominium, St. John, U.S. Virgin Islands pursuant to Chapter 33, Title 28, Virgin Islands Code dated February 29, 1988 recorded March 10, 988 in Book 31–U Page 246 No. 212 and indexed in Aux 21(h) Page 285, as amended by a First Amendment to First Supplemental Declaration Establishing a Seasonal Ownership Plan for Condominium Ownership of Virgin Grand Villas—St. John Condominium, St. John, U.S. Virgin Islands dated April 12, 1988 recorded April 13, 1988 in Book 31–Z Page 289 No. 458, as further amended by Second Supplemental Declaration dated December 6, 1988, recorded December 8, 1988 in Book 33–F, page 456, Document No. 1846; as further amended by First Amendment to Second Supplemental Declaration dated January 31, 1989, recorded February 7, 1989 in Book 33–O, page 171, Document No. 270; all at the Office of the Recorder of Deeds for St. Thomas and St. John, U.S. Virgin Islands, together with the applicable undivided percentage interest in the Common Elements as set forth above and in Exhibit A to the Declaration.5
Id. Defendant Allen–Williams Corporation (“A–W”) is the fee simple title owner of the subject real property. Id. at ¶ 4. The Government claims an interest therein solely by reason of a tax lien which it has asserted in the amount of $81,725.85 as of January 30, 1996, with continued interest accruals thereon. Aff. of Tax Debt, Exh. O; Government's Answer and Cross–Claim, Exh. D. The Government has, however, conceded that its tax lien is subordinate in time, priority and right to plaintiffs' mortgage. Order of Mar. 25, 1996, ¶ 2, Exh. I.6 Interests in the property claimed by the Easement defendants were all executed, delivered, and recorded after plaintiffs executed, delivered, and recorded their interest. Grilley Aff., ¶ 7, Exh. J. Further clarification of the business relationships in this complex series of transactions is in order. In so doing, the Court refers to its opinion in Skopbank I.
Great Cruz Bay Development (“Great Cruz”) was the owner of the Hyatt Regency St. John and the Virgin Grand Suites Condominium (“the Hotel Tract”). Id., slip op. at 3. Villas Associates (“Villas”) was the developer of a 96–unit condominium development known as the Virgin Grand Villas—St. John Condominium (“the Villas Tract”). Id. Both Great Cruz...
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