Virgin Islands Nat'l Bank v. Tyson, 74-1824

• Citation: 11 V.I. 323
• Decision Date: 30 December 1974
• Docket Number: No. 74-1824,74-1824
• Parties: VIRGIN ISLANDS NATIONAL BANK, Appellee v. BETTY JEAN TYSON and KENNETH B. TYSON; Betty Jean Tyson, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

11 V.I. 323

VIRGIN ISLANDS NATIONAL BANK, Appellee v. BETTY JEAN TYSON and KENNETH B. TYSON; Betty Jean Tyson, Appellant

No. 74-1824

United States Court of Appeals Third Circuit

Argued December 6, 1974

Filed December 30, 1974

Mortgage foreclosure proceeding. Circuit Court, Rosenn, Circuit Judge, held that denial of motion to reopen case and amend judgment, following order confirming judicial sale granted upon failureto file objections within five days of return of writ of execution, was not an abuse of discretion and would be affirmed where no evidence justifying failure to object was offered and no meritorious defense to the sale was demonstrated.

ROBERT F. STEEVES, ESQ., Washington, D.C., for appellant

THOMAS W. FINUCAN, ESQ. (BORNN, MCLAUGHLIN & FINUCAN), St. Thomas, V.I., for appellee

Before SEITZ, Chief Judge, VAN DUSEN and ROSENN, Circuit Judges

OPINION OF THE COURT

ROSENN, Circuit Judge

The sole question presented in this appeal is whether the district court abused its discretion in refusing to relieve appellant from an order confirming the judicial sale of her real estate.

On July 13, 1972, the Virgin Islands National Bank (Bank) obtained summary judgment in an action to foreclose on a mortgage note for $165,000 executed by appellant Betty Jean Tyson. A writ of execution issued pursuant to which the United States Marshal conducted a judicial sale of Mrs. Tyson's real estate on April 18, 1973. The Marshal made return of the writ on June 18, 1973.

The Bank filed a motion to confirm the sale on June 28, 1973. On July 10, the Bank served notice on Tyson that the motion would be heard on July 16. Meanwhile, the judgment debtor not having filed any objections to the sale, the district court granted the Bank's motion on July 5 without a hearing.

Mrs. Tyson filed a Motion for Order to Reopen Case and Amend Judgment on January 8, 1974, which the district court denied¹ on February 12. Mrs. Tyson filed another motion, styled a Motion for Order to Set Aside Judicial Sale, on February 14. This second motion was denied on March 4 after a hearing. On April 2 Mrs. Tyson filed a notice of appeal from the order of March 4.

Mrs. Tyson characterizes her second motion as one for relief from the confirmation order pursuant to rule 60(b) of the Federal Rules of Civil Procedure. We shall so treat it, although the motion nowhere states the basis upon whichrelief is sought. See United States v. Backofen, 176 F.2d 263, 266 (3dCir. 1949).

[1-3] A party moving under rule 60(b) for relief from a judgment, order, or proceeding must clearly establish the grounds therefor to the satisfaction of the district court. Federal Deposit Ins. Corp. v. Alker, 234 F.2d 113, 116-17 (3d Cir. 1956). The district court's ruling on the motion is reviewable in this court only for abuse of discretion. Estate of Murdoch v. Pennsylvania, 432 F.2d 867, 870 (3d Cir. 1970); Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951). We find no abuse of discretion and therefore affirm.

The Legislature of the Virgin Islands has specified the procedure to be followed in confirming the judicial sale of real property. 5 V.I.C. § 489. Section 489 provides in part:

(1) The plaintiff in the writ of execution shall be entitled, on motion therefor, to have an order confirming the sale, unless the judgment debtor, or his representative in case of his death, files with the clerk his objections thereto within five days after the return thereof.

(2) If such objections are filed, the court shall, notwithstanding, allow the order confirming the sale, unless on the hearing of the motion it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting. In the latter case, the court shall disallow the motion and direct that the property be resold, in whole or in part, as the case may be, as upon an execution received on that date.

[4] Mrs. Tyson's contention that she was entitled to a hearing before the confirmation order was issued may not be presented in a rule 60(b) motion. Under section 489(1), she had until five days after return of the writ—in this instance, 66 days after the judicial sale—to file objections based on substantial irregularities in the conduct of the sale. Upon her failure to file or move for enlargement of the time for filing objections, the district court had thepower to enter an order confirming the sale without a hearing.² Thus, the only question presented by Mrs. Tyson's rule 60(b) motion is whether, despite her failure to object within the time limits specified by statute, she should be relieved from the confirmation order.

Mrs. Tyson advances several grounds³ upon which she contends that relief from the confirmation order should have been granted by the district court:

(1) The notice of the judicial sale contained an inadequate description of the real estate to be sold.

(2) The seven contiguous parcels of real estate should have been offered, not only as a whole, but separately as well.

(3) The sole bid, made by the Bank, was grossly inadequate.

(4) The Bank learned before the sale that at least one other person might bid if the sale were postponed, but may have failed to communicate this information to the Marshal; if the information was communicated to the Marshal, his failure to postpone the sale in order to increase the number of bidders vitiated its validity.

Mrs. Tyson has offered no evidence which would justify her failure to object on the first three grounds within the time specified by statute. 5 V.I.C. § 489(1); see Fed. R. Civ. P. 60(b)(1), (2)....