EFTA01295845.pdf

Erika Kellerhals
NAME SEARCHED:
PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches
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Mt
No Hit Not Required
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El Hit
gi
El Yes No III. Negative Media There was no information found
BIS Required IV. Non-Negative Media There was no information found
• Not
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OFAC RESULTS
RDC:
Date of I
GCIS
11593661 NQEllitth Country :United States Birth:
Found 00000483290 Erika Kellerhals 10/13/1974 i•
PCR:
C20161034949193 Erika Kellerhals 12013248 NCA customised Auto-Closed No-Hit 12/10/2016
BIS RESULTS
Negative Media:
There was no information found
Non-Negative Media:
There was no information found
Other Language Media:
Not Required
Public Records:
1 OF 1 RECORD(S)
FOR INFORMATIONAL PURPOSES ONLY
Copyright 2016 LexisNexis
a division of Reed Elsevier Inc. All Rights Reserved.
Date:10/12/2016
Report processed by:
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Full Name Address County Phone
KELLERHALS, ERIKA A 242 BRYANT AVE RICHMOND (718) 667-1921
STATEN ISLAND, NY 10306.3142
RICHMOND COUNTY
ADDITIONAL PERSONAL INFORMATION
SSN DOB Gender LexID(sm)
074-72-XXXX 10/1974 001368644215
(Age:41)
Subject Summary
Name Variations
1: KELLERHALES, ER ICKA A
2: KELLERHALLS, ERIKA A
3: KELLERHALS. E A
4: KELLERHALS. ERIKA
5: KELLERHALS. ERIKA A
SSNs Summary
No. SSN State Iss. Date Iss. Warnings
Most frequent SSN attributed to subject:
1: 074-72-XXXX New York 1987-1988
Possible E-Mail Addresses
ERIKA©MARJORIEROBERTSPC COM
EKELLAR©VT.E DU
Others Using SSN - 2 records found
# Full Name SSN DOB
1: KELLERHALS. ENER 074-72-XXXX 10/1974
11 YOUNG, MICHAEL S 074-72-XXXX
Address Summary - 12 records found
No. Address
1: 242 BRYANT AVE
STATEN ISLAND. NY 10306-3142
RICHMOND COUNTY
2: 9053 ESTATE THOMAS 101
ST THOMAS, VI 00802
ST. THOMAS COUNTY
3: 9100 PORT OF SALE MALL STE 15
ST THOMAS, VI 00802-3602
ST. THOMAS COUNTY
4: 9053 ESTATE THOMAS STE 10
ST THOMAS, VI 00802
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No. Address
ST. THOMAS COUNTY
5: PO BOX 608
ST THOMAS. VI 00804-0608
ST. THOMAS COUNTY
6: PO BOX 6347
ST THOMAS, VI 00804-6347
ST. THOMAS COUNTY
7: 9100 PORT OF SALE MALL STE 2
ST THOMAS. VI 00802-3602
ST. THOMAS COUNTY
8: 184 JORALEMON ST APT 1
BROOKLYN, NY 11201-4329
KINGS COUNTY
9: 184 JORALEMON ST APT 12R
BROOKLYN, NY 11201-4329
KINGS COUNTY
10: 187 JORALEMON ST APT 12R
BROOKLYN, NY 11201-4306
KINGS COUNTY
11: 242 BRYSON AVE
STATEN ISLAND. NY 10314-1923
RICHMOND COUNTY
12: 242 BYRNE AVE
STATEN ISLAND, NY 10314-4409
RICHMOND COUNTY
Address Details
1: 242 BRYANT AVE STATEN ISLAND, NY 10306-3142
Address Dates Phone
242 BRYANT AVE 2/1994 - 10/2016 (718)667-1921
STATEN ISLAND, NY 10306-3142
RICHMOND COUNTY
Census Data for Geographical Region
Median Head of Household Age. 47
Median Income: $82,353
Median Home Value: $584.337
Median Education: 14 years
Household Members
DAHLING. MELISSA A
KELLERHALS. EDWARD
KELLERHALS. EDWARD A
KELLERHALS. ENER
KELLERHALS. KATHLEEN M
Other Associates
HANRATTY, THOMAS E
2: 9053 ESTATE THOMAS 101 ST THOMAS, VI 00802
Address Dates Phone
9053 ESTATE THOMAS 101 6/2016 - 8/2016
ST THOMAS, VI 00802
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ST. THOMAS COUNTY
Household Members
None Listed
Other Associates
None Listed
3: 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602
Address Dates Phone
9100 PORT OF SALE MALL STE 15 12/2003 - 6/2016
ST THOMAS, VI 00802-3602
ST. THOMAS COUNTY
Household Members
None Listed
Other Associates
BETZ, SHAUNA L
4: 9053 ESTATE THOMAS STE 10 ST THOMAS, VI 00802
Address Dates Phone
9053 ESTATE THOMAS STE 10 5/2016 - 5/2016
ST THOMAS, VI 00802
ST. THOMAS COUNTY
Household Members
None Listed
Other Associates
None Listed
5: PO BOX 608 ST THOMAS, VI 00804-0608
Address Dates Phone
PO BOX 608 3/2004 - 11/2015
ST THOMAS, VI 00804-0608
ST. THOMAS COUNTY
Household Members
KELLERHALS. EDWARD A
Other Associates
FERGUSON. GREG J
6: PO BOX 6347 ST THOMAS, VI 00804-6347
Address Dates Phone
PO BOX 6347 3/2004 - 4/2009
ST THOMAS, VI 00804-6347
ST. THOMAS COUNTY
Household Members
KELLERHALS, EDWARD A
Other Associates
FERGUSON, GREG J
7: 9100 PORT OF SALE MALL STE 2 ST THOMAS, VI 00802-3602
Address Dates Phone
9100 PORT OF SALE MALL STE 2 7/2003 - 6/2004
ST THOMAS, VI 00802-3602
ST. THOMAS COUNTY
Household Members
KELLERHALS. EDWARD A
Other Associates
None Listed
8: 184 JORALEMON ST APT 1 BROOKLYN, NY 11201-4329
Address Dates Phone
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184 JORALEMON ST APT 1 11/1997 - 11/1997
BROOKLYN, NY 11201.4329
KINGS COUNTY
Census Data for Geographical Region
Median Head of Household Age: 34
Median Income: $127,273
Median Home Value: $741,587
Median Education: 18 years
Household Members
None Listed
Other Associates
None Listed
9: 184 JORALEMON ST APT 12R BROOKLYN, NY 11201-4329
Address Dates Phone
184 JORALEMON ST APT 12R 10/1997 - 11/1997
BROOKLYN, NY 11201-4329
KINGS COUNTY
Census Data for Geographical Region
Median Head of Household Age 34
Median Income: $127,273
Median Home Value: $741,587
Median Education: 18 years
Household Members
None Listed
Other Associates
None Listed
10: 187 JORALEMON ST APT 12R BROOKLYN, NY 11201-4306
Address Dates Phone
187 JORALEMON ST APT 12R 2/1994 - 10/1997
BROOKLYN, NY 11201-4306
KINGS COUNTY
Census Data for Geographical Region
Median Head of Household Age: 34
Median Income: $127,273
Median Home Value: $741.587
Median Education: 18 years
Household Members
KELLERHALS. KATHLEEN M
Other Associates
None Listed
11: 242 BRYSON AVE STATEN ISLAND, NY 10314-1923
Address Dates Phone
242 BRYSON AVE 2/1994 - 2/1994
STATEN ISLAND. NY 10314-1923
RICHMOND COUNTY
Census Data for Geographical Region
Median Head of Household Age 47
Median Income: $74,028
Median Home Value: $483,978
Median Education: 13 years
Household Members
None Listed
Other Associates
None Listed
12: 242 BYRNE AVE STATEN ISLAND, NY 10314-4409
Address Dates Phone
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242 BYRNE AVE 2/1994 - 2/1994
STATEN ISLAND, NY 10314-4409
RICHMOND COUNTY
Census Data for Geographical Region
Median Head of Household Age 42
Median Income: $95.399
Median Home Value: $462,729
Median Education' 13 years
Household Members
None Listed
Other Associates
None Listed
Voter Registrations -1 records found
1: New York Voter Registration
Registrant Information
Name: KELLERHALS. ERIKA A
Residential Address: 242 BRYANT AVE
STATEN ISLAND. NY 10306-3142
RICHMOND COUNTY
SSN: 074-72-XXXX
Date of Birth: 10/1974
Gender: Female
Voter Information
Last Vote Date: 2002
Party Affiliation: DEMOCRAT
Active Status: ACTIVE
Driver Licenses - 0 records found
Professional Licenses -1 records found
1: Professional License
Licensee Information
Name: KELLERHALS. ERIKA ANN
SSN: 074-72-XXXX
Address: 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602
County: ST. THOMAS
Phone: (340) 779-2564
Gender: FEMALE
License Information
License Type: 105284
Issue Date: 02/10/2015
Status: OTHERS
Health Care Providers - 0 records found
Health Care Sanctions - 0 records found
Pilot Licenses - 0 records found
Sport Licenses - 0 records found
Real Property - 0 records found
Motor Vehicle Registrations - 2 records found
1: NY MVR
Registrant Information
Registrant: KELLERHALS, ERIKA A
DOB: 10/1974
Address: 242 BRYANT AVE
STATEN ISLAND, NY 10306-3142
RICHMOND COUNTY
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Registration Information
Original Registration Date: 1/30/2002
Registration Date: 1/30/2002
Registration Expiration Date: 1/29/2004
Vehicle Information
VIN: WVWPD63842P1 71962
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2002
Make: Volkswagen
Model: Passat
Series: GLS
Body Style: Sedan 4 Door
Weight: 3196
Plate Information
License Plate Type: Private
License Plate Number: AHG1059
Plate State: NY
Source Information
Data Source: GOVERNMENTAL
2: NY MVR
Vehicle Information
VIN: VVVWPD63B42P171962
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2002
Make: Volkswagen
Model: Passat
Series: GLS
Body Style: Sedan 4 Door
Weight: 3196
Owner Information
Name: KELLERHALS, ERIKA A
DOB: 10/1974
Address: 242 BRYANT AVE
STATEN ISLAND, NY 10306-3142
RICHMOND COUNTY
Lienholder Information
Name: CHASE MANHATTAN BANKUSA NA
Address: PO BOX 5210
NEW HYDE PARK. NY 11042-5210
NASSAU COUNTY
Title Information
Title Transfer Date: 3/6/2002
Title Issue Date: 3/6/2002
Source Information
Data Source: GOVERNMENTAL
Boats - 0 records found
Aircraft - 0 records found
Bankruptcy Information - 0 records found
Judgments/Liens - 0 records found
UCC Liens - 0 records found
Fictitious Businesses - 0 records found
Notice Of Defaults - 0 records found
Potential Relatives - 10 records found
1st Degree: 6. 2nd Degree 4
No. Full Name Address/Phone
KELLERHALS, ENER 184 JORALEMON ST
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No. Full Name Address/Phone
BROOKLYN, NY 11201-4329
SSN:074-72-XXXX
DOB:10/1974 242 BRYANT AVE
(Age: 41) STATEN ISLAND. NY 10306.3142
(718) 667-1921
2. KELLERHALS, EDWARD A 242 BRYANT AVE
STATEN ISLAND, NY 10306.3142
• AKA RELLERMALS, EDWARD A (718) 667-1921
• AKA KELLERNALS. EDW
102 LINCOLN AVE
SSN:063-36-XXXX STATEN ISLAND, NY 10306-2459
DOB:7/1944
(Age: 72) PO BOX 608
ST THOMAS. VI 00804-0608
PO BOX 6347
ST THOMAS. VI 00804-6347
9100 PORT OF SALE MALL STE 2
ST THOMAS, VI 00802-3602
3. KELLERHALS. KATHLEEN M 242 BRYANT AVE
STATEN ISLAND, NY 10306.3142
• AKA KELLERHAL, KATHLEEN M (718) 667-1921
• AKA KELLERHALS, KATHLEEN
• AKA KELLERHALS, K M 256 BRYANT AVE
• AKA KELLERHALS. KATHEEN STATEN ISLAND. NY 10306-3142
• AKA KELLERBALS, KATHLEEN M (718) 351-1242
• AKA KELLERHALS, KATHLEEN M
184 JORALEMON ST STE 12R
SSN:063-3640(XX BROOKLYN, NY 11201-4329
DOB:6/1949
(Age: 67) 187 JORALEMON ST APT 12R
BROOKLYN, NY 11201-4306
4. KELLERHALS, EDWARD 242 BRYANT AVE
STATEN ISLAND, NY 10306-3142
(718) 667-1921
(718) 979-7823
5. DAHLING, ROBERT J 196 RICE AVE
STATEN ISLAND. NY 10314-3032
SSN:133-60-XXXX (718) 273-7338
DOB:4/1971
(Age: 45) 413 HEBERTON AVE
STATEN ISLAND, NY 10302-2125
PO BOX 61494
STATEN ISLAND, NY 10306-7494
46 BACHE AVE
STATEN ISLAND, NY 10306-3010
(718) 351-1586
76 PRINCETON AVE
STATEN ISLAND. NY 10306.2816
(718) 987-7331
(718) 987-7685
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No. Full Name Address/Phone
5.A. DAHLING, ROBERT J 196 RICE AVE
STATEN ISLAND, NY 10314-3032
SSN:080-34-XXXX (718) 273-7338
DOB:11/1940 (718) 979-0174
(Age: 75)
46 BACHE AVE
STATEN ISLAND, NY 10306-3010
(718) 351-1586
(718) 979-0174
76 PRINCETON AVE
STATEN ISLAND, NY 10306-2816
(718) 987-7331
(718) 987-7685
5.B. DAHLING, PATRICIA M 196 RICE AVE
STATEN ISLAND, NY 10314-3032
• AKA DAHLING. P (718) 273-7338
SSN:106-34-XXXX 359 DEMOREST AVE
DOB:3/1943 STATEN ISLAND. NY 10314-2161
(Age: 73) (347) 861-0330
5 BOWEN ST APT
STATEN ISLAND. NY 10304-3513
5.C. DAHLING, MICHAEL A 4926 E AMELIA AVE
PHOENIX, AZ 85018-5523
• AKA DAHLIG. MICHAEL
15822 W PAPAGO ST
SSN:133-60-XXXX GOODYEAR, AZ 85338-3340
DOB:6/1974
(Age: 42) 1207 E SECRETARIAT DR
TEMPE. AZ 85284-1611
5050 W IVANHOE ST
CHANDLER, AZ 85226-1964
196 RICE AVE
STATEN ISLAND, NY 10314-3032
(718) 273-7338
5.D MAYFIELD, JESSICA E 3516 E PICCADILLY RD
PHOENIX, AZ 85018.5116
• AKA DAHLING. JESSICA A
• AKA MAYFIELD, JESSIE 4926 E AMELIA AVE
• AKA MAYFIELD, JESSI PHOENIX, AZ 85018.5523
• AKA MORRIS. JESSICA
• AKA BUCCOLA, JESSIE 300 W BEECH ST UNIT 1504
SAN DIEGO, CA 92101-8450
SSN:605-09-XXXX
DOB:11/1977 6945 E 2ND ST APT 4
(Age: 38) SCOTTSDALE, AZ 85251-5339
(480) 994-7352
(760) 685-6573
2395 CARRIAGE CIR
OCEANSIDE, CA 92056-3605
6. DAHLING, MELISSA A 46 BACHE AVE
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No. Full Name Address/Phone
STATEN ISLAND, NY 10306-3010
• AKA KELLERHALS, MELISSA A (718) 351-1586
SSN:087-70-XXXX 46 BEACH AVE
DOB:12/1971 STATEN ISLAND. NY 10306-1915
(Age: 44)
242 BRYANT AVE
STATEN ISLAND, NY 10306.3142
(718)667-1921
76 PRINCETON AVE
STATEN ISLAND, NY 10306-2816
(718) 987-7331
(718) 987-7685
Business Associates - 2 records found
1: KELLERHALS FERGUSON FLETCHER KROBLIN PLLC
Name: KELLERHALS, ERIKA A
Address: 501 E KENNEDY BLVD STE 802
TAMPA. FL 33602-5201
Status: ACTIVE
State: FL
Corporation Number: M13000002984
Descriptive Status: ACTIVE
Title: MEMBER MANAGER
Record Type: CURRENT
Record Date: 10/28/2013
2: KELLERHALS FERGUSON FLETCHER KROBLIN PLLC
Name: KELLERHALS, ERIKA A
Address: 501 E KENNEDY BLVD STE 802
TAMPA, FL 33602-5201
Status: INACTIVE
State: FL
Corporation Number: M13000002984
Descriptive Status: INACTIVE
Title: MEMBER MANAGER
Record Type: CURRENT
Record Date: 8/4/2016
Filing Date: 1/6/2014
Person Associates - 7 records found
No. Full Name Address SSN Phone DOB
1: BETZ, SHAUNA L 9100 PORT OF SALE 522-69-XXXX 12/1981
MALL STE 15
ST THOMAS, VI 00802-
3602
6501 RED HOOK PLZ STE
201
ST THOMAS, VI 00802-
1373
5600 ROYAL DANE MALL
STE 51
ST THOMAS, VI 00802-
6410
148 W MAPLE AVE
DENVER, CO 80223-1841
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No. Full Name Address SSN Phone DOB
1576 S JERSEY ST
DENVER. CO 80224-1935
2: FERGUSON, GREG J 9100 PORT OF SALE 601-42-XXXX (480) 8314166 4/1976
FERGUSON. GREGORY J MALL STE 15
ST THOMAS, VI 00802-
3602
PO BOX 12259
ST THOMAS. VI 00801-
5259
PO BOX 608
ST THOMAS, VI 00804-
0608
PO BOX 6347
ST THOMAS, VI 00804-
6347
2422 W PECOS AVE
MESA, AZ 85202-7821
3: HANRATTY, THOMAS E 256 BRYANT AVE H 123-204000( (718) 667-1921 1/1928
STATEN ISLAND. NY (718) 987-5316
10306-3142 (718) 987-5316
242 BRYANT AVE
STATEN ISLAND. NY
10306-3142
102 LINCOLN AVE
STATEN ISLAND, NY
10306.2459
4: ROBINSON. KELLY M 9100 PORT OF SALE 134-564000K 7/1973
TRAYNOR, KELLY MALL STE 22
ST THOMAS, VI 00802-
3602
9100 PORT OF SALE
MALL STE 15
ST THOMAS, VI 00802-
3602
4600 ESTATE
CHARLOTTE AMALIE
ST THOMAS, VI 00802-
2305
2369 KRONPRINDSENS
GODE STE 8
ST THOMAS, VI 00802-
6252
3219 CONTANT STE 211
ST THOMAS, VI 00802-
6111
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No. Full Name Address SSN Phone DOB
5: TRAYNOR, CARA 9100 PORT OF SALE 052-604000K 7/1976
ROBINSON. CARA MALL STE 22
ST THOMAS. VI 00802-
3602
9100 PORT OF SALE
MALL STE 15
ST THOMAS, VI 00802-
3602
4600 ESTATE
CHARLOTTE AMALIE
ST THOMAS. VI 00802-
2305
2369 KRONPRINDSENS
GADE STE N08
ST THOMAS. VI 00802-
6252
3219 CONTANT STE 211
ST THOMAS. VI 00802-
6111
6: GEARY, BRETT A A 17724 MINE RD 580-23-XXXX (703) 221-2506
DUMFRIES. VA 22025- (703) 445-9194
2003
9100 PORT OF SALE
MALL STE 15
ST THOMAS. VI 00802-
3602
9100 PORT OF SALE
MALL STE 22
ST THOMAS. VI 00802-
3602
PO BOX 305259
ST THOMAS. VI 00803-
5259
15211 STREAMSIDE CT
DUMFRIES. VA 22025-
3022
7: THOMAS. WILLIAM AVERY 10204 MAPLERIDGE DR 451-83-XXXX 10/1984
DALLAS, TX 75238-2257
2900 CHAUTAUQUA AVE
APT 255
NORMAN. OK 73072-7715
2900 CHAUTAUQUA AVE
APT 2
NORMAN, OK 73072-7723
1020W 4TH AVE APT 13
STILLWATER. OK 74074-
3337
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No. Full Name Address SSN Phone DOB
9100 PORT OF SALE
MALL STE 15
ST THOMAS. VI 00802-
3602
Neighbors - 10 records found
242 BRYANT AVE STATEN ISLAND, NY 10306-3142
Name Address Phone
CAHILL, JAMES BRIAN 235 BRYANT AVE (718) 987-5658
CARDO. ERICA STATEN ISLAND. NY 10306-3103
BURKE, MATTHEW J 235 BRYANT AVE APT 2
STATEN ISLAND. NY 10306-3103
ASSENZA, CHRISTOPHER M 241 BRYANT AVE (718) 979-2166
ASSENZA, MICHAEL P STATEN ISLAND, NY 10306-3143
CIRIGLIANO. MICHAEL EDWARD
CIRIGLIANO, SUZANNE
MIRO, FRANK AGUSTIN 243 BRYANT AVE (718) 979-6876
PACCIONE, PAMELA J STATEN ISLAND, NY 10306-3143
GLAZAROV, MICHELLE J 245 BRYANT AVE (718) 667-1705
LEOKUMOVICH, BORIS STATEN ISLAND, NY 10306.3143
KRUSE. ADAM M 250 BRYANT AVE (718) 351-8871
KRUSE, BRANDON G STATEN ISLAND, NY 10306.3142
KRUSE, DONNA V
KRUSE. JOHN J
KRUSE. VICTORIA M
CUSACK, C J 251 BRYANT AVE (718)351.3510
STATEN ISLAND. NY 10306-3143
CUSACK, MARIE E 251 BRYANT AVE APT H (718) 351-3510
STATEN ISLAND. NY 10306-3143
GILLIUM, MAUREEN A 256 BRYANT AVE (718) 351-1242
MCMILLAN, ROBERT M STATEN ISLAND, NY 10306.3142
RAMIN, DENISE A 257 BRYANT AVE APT (347) 286-0615
STATEN ISLAND. NY 10306-3136
Employment Locator - 14 records found
1:
Company Name: THERAPY ASSOCIATION AND DISABILITIES ADVOCATES INC
Name: KELLERHALS, ERIKA A
Address: PO BOX 6016
ST THOMAS, VI 00804-6016
SSN: 074-72-XXXX
Confidence: High
2:
Company Name: KELLERHALS FERGUSON FLETCHER KROBLIN PLLC
Name: KELLERHALS. ERIKA A
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Title: MEMBER MANAGER
SSN: 074-7240(XX
Confidence: Medium
3:
Company Name: THE MAHOGANY RUN HOME OWNER'S ASSOCIATION
Name: KELLERHALS. ERIKAA
Title: VICE PRESIDENT AND DIRECTOR
Address: 6501 RED HOOK PLZ STE 201
ST THOMAS, VI 00802-1373
SSN: 074-72-XXXX
Phone: (340) 626-5890
Confidence: Medium
4:
Company Name: PATIENT ASSIST VI
Name: KELLERHALS. ERIKAA
Address: 9100 PORT OF SALE MALL STE 15
ST THOMAS. VI 00802-3602
SSN: 074-72-XXXX
Confidence: High
5:
Company Name: VISF
Name: KELLERHALS. ERIKA A
Title: VICE PRESIDENT
Address: PO BOX 1605
KINGSHILL, VI 00851-1605
SSN: 074-72-XXXX
Phone: (304) 692-3310
Confidence: Medium
6:
Company Name: KELLERHALS P.0
Name: KELLERHALS. ERIKAA
Title: PARTNER
Address: PO BOX 608
ST THOMAS, VI 00804-0608
SSN: 074-72-XXXX
Phone: (340) 779-2564
Confidence: Medium
7:
Company Name: THERAPY ASSOCIATION AND DISABILITIES ADVOCATES INC
Name: KELLERHALS, ERIKAA
Address: PO BOX 608
ST THOMAS, VI 00804-0608
SSN: 074-72-XXXX
Confidence: High
8:
Company Name: ERIKA A. KELLERHALS P.0
Name: KELLERHALS, ERIKA A
Address: PO BOX 608
ST THOMAS, VI 00804-0608
SSN: 074-72-XXXX
Phone: (340) 779-2564
Confidence: Medium
9:
Company Name: ERIKA A. KELLERHALS P.0
Name: KELLERHALS. ERIKA
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Title: PRESIDENT
Address: PO BOX 608
ST THOMAS, VI 00804-0608
SSN: 074-72-XXXX
Phone: (340) 779.2564
Confidence: Medium
10:
Company Name: MARJORIE RAWLS ROBERTS P.0
Name: KELLERHALS. ERIKAA
Title: ATTORNEY
Address: PO BOX 6347
ST THOMAS, VI 00804.6347
SSN: 074-7240=
Phone: (340) 776.7235
Confidence: Medium
11:
Company Name: ROBERTS, MARJORIE RAWLS
Name: KELLERHALS. ERIKAA
Title: ASSOCIATE
Address: PO BOX 6347
ST THOMAS, VI 00804-6347
SSN: 074-72-XXXX
Phone: (340) 776-7235
Confidence: High
12:
Company Name: THE LALTJ LIMITED PARTNERSHIP
Name: KELLERHALS, ERIKA MS
Title: CONTACT
Address: 17 STATE ST
NEW YORK. NY 10004-1501
SSN: 074-72-XXXX
Confidence: High
13:
Company Name: ERIKA A. KELLERHALS, P.C.
Name: KELLERHALS. ERIKAA
Title: MEMBER
SSN: 074-72-XXXX
Phone: (340) 779-2564
Confidence: High
14:
Company Name: MARJORIE RAWLS ROBERTS P.0
Name: KELLERHALS. ERIKAA
Address: PO BOX 6347
ST THOMAS. VI 00804-6347
SSN: 074-72-XXXX
Phone: (340) 776-7235
Confidence: Medium
Criminal Filings - 0 records found
Cellular & Alternate Phones -1 records found
1:
Personal Information
Name: KELLERHALS, ERIKA
Address: 102 LINCOLN AVE
STATEN ISLAND, NY 10306-2459
Phone Number: (340) 690-0891
Phone Type: Mobile
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Carrier Information
Carrier: NEW CINGULAR WRLS GA
Carrier City: CHARLOTTE AMALIE (SAINT T
Carrier State: VI
Sources - 44 records found
All Sources 44 Source Document(s)
Corporate Affiliations 2 Source Document(s)
Email addresses 7 Source Document(s)
Historical Person Locator 7 Source Document(s)
Motor Vehicle Registrations 3 Source Document(s)
Person Locator 1 11 Source Document(s)
Person Locator 2 4 Source Document(s)
Phone 4 Source Document(s)
PhonesPlus Records 1 Source Document(s)
Professional Licenses 1 Source Documents)
Utility Locator 3 Source Document(s)
Voter Registrations 1 Source Document(s)
D&B:
Not Required
LEGAL RESULTS:
Court Cases:
IN RE: JEFFREY J. PROSSER, Debtor. NORTH SHORE REAL
ESTATE CORPORATION, Appellant, v. JAMES P. CARROLL,
CHAPTER 7 TRUSTEE, Appellee.
Chapter 7, Case No. 06-30009 (JFK), Civil No. 2010-70
United States District Court for the District of the Virgin
Islands, St. Thomas & St. John Division
2012 U.S. Dist. LEXIS 93633
July 6, 2012, Filed
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PRIOR HISTORY: Carroll v. N. Shore Real Estate Corp. (In re Prosser), 2010 Bankr.
LEXIS 1566 (Bankr. D.V.I., May 26, 2010)
CASE SUMMARY:
OVERVIEW: Appellant filed a notice of appeal from a decision of the bankruptcy court.
Appellee trustee moved to dismiss the appeal for failure to prosecute under Fed. R. Bankr.
P. 8001(a). Of the six Poulis factors. five weighed in favor of dismissal and one weighed
against dismissal. The court took into account the possibility that appellants counsel had
some of the responsibility for its failure to follow the court's scheduling order. Nonetheless.
on balance, the Poulis factors demonstrated that dismissal of the appeal was an
appropriate sanction for appellant's failure to file its brief.
OUTCOME: Motion to dismiss granted.
CORE TERMS: summary judgment, scheduling, reconsideration, deadline, weigh, failure
to prosecute, designation, discovery, failure to comply, affirming, bankruptcy proceedings,
extension of time, general denials, citations omitted, genuine issue, effectiveness,
reconsider, notice of appeal, failure to follow, bad faith, financial resources, deemed
admitted, dilatoriness, non-moving, willful, incur, Bankruptcy Rules, matter of law, personal
responsibility, clear error
LexisNexis(R) Headnotes
Bankruptcy Law > Practice 8. Proceedings > Appeals > Procedures
[FIN11 Under Fed. R. Bankr. P. 8001(a), the district court is empowered to dismiss an
appeal for failure to prosecute or otherwise follow the procedures set out in the Bankruptcy
Rules. Before such a dismissal occurs, a district court must consider six factors outlined in
Poulis v. State Farm Fire and Cas. Co. In Poulis, the U.S. Court of Appeals for the Third
Circuit stated that a district court must balance the following factors: (1) the extent of the
party's personal responsibility; (2) the prejudice to the adversary caused by the failure to
meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether
the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of
sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6)
the meritoriousness of the claim or defense.
Bankruptcy Law > Practice 8, Proceedings > Appeals > Procedures
[HN2j An appeal from a judgment, order, or decree of a bankruptcy judge to a district court
or bankruptcy appellate panel shall be taken by filing a notice of appeal with the clerk
within the time allowed by Fed. R. Bankr. P. 8002. An appellant's failure to take any step
other than timely filing a notice of appeal does not affect the validity of the appeal, but is
ground only for such action as the district court or bankruptcy appellate panel deems
appropriate. which may include dismissal of the appeal. Fed. R. Bankr. P. 8001(a) (2011).
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
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[HN3] Not all of the Poulis factors need be met for a district court to find dismissal is
warranted. However, courts must consider and balance all six Poulis factors before
dismissing a case with prejudice, and all doubts must be resolved in favor of an
adjudication on the merits.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN4] Dismissal typically occurs in cases showing consistently dilatory conduct or the
complete failure to take any steps other than the mere filing of a notice of appeal.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN5] A client's lack of responsibility for its counsel's dilatory conduct is not dispositive on
a motion to dismiss for failure to prosecute, because a client cannot always avoid the
consequences of the acts or omissions of its counsel.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN6] Prejudice for the purpose of the Poulis factors does not mean irremediable harm.
Rather, the burden imposed by impeding the opposing party's ability to prepare a
meaningful litigation strategy has been held to be sufficiently prejudicial.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN7] The third Poulis factor considers the appellant's history of dilatoriness.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN8] Either of these violations-failing to comply with the Bankruptcy Rules for filing a
brief within 15 days of the docketing of his appeal or providing for the transcript of the
bankruptcy court proceedings—is grounds for a dismissal under Fed. R. Bankr. P. 8001.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN9]The fourth Poulis factor considers whether the conduct of the appellant or of the
appellant's attorney was willful or in bad faith.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN10] The fifth Poulis factor assesses the effectiveness of sanctions other than dismissal.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN11] The sixth Poulis factor considers the meritoriousness of the appellant's claim.
Ordinarily, a claim, or defense, will be deemed meritorious when the allegations of the
motion, if established, would support recovery by plaintiff or would constitute a complete
defense.
Bankruptcy Law > Practice & Proceedings > Adversary Proceedings > Judgments &
Remedies
Bankruptcy Law > Practice & Proceedings > Appeals > Standards of Review >
General Overview
Civil Procedure > Summary Judgment > Standards > General Overview
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[HN12] In reviewing a determination of a bankruptcy court's grant of summary judgment, a
reviewing court subjects the bankruptcy court's legal determinations to plenary review,
reviewing its factual findings for clear error, and considering its exercise of discretion for
abuse thereof. A bankruptcy court may grant summary judgment if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
Civil Procedure > Summary Judgment > Burdens of Production & Proof > General
Overview
[HN13] The movant has the initial burden of showing that there is no genuine issue of
material fact. Once the initial burden is met it shifts to the non-moving party to establish
specific facts showing there is a genuine issue for trial. The non-moving party may not rest
upon mere allegations, general denials, or vague statements. There is no issue for trial
unless there is sufficient evidence favoring the non-moving party for a jury to return a
verdict for that party.
Civil Procedure > Summary Judgment > Evidence
[HN14] At the summary judgment stage, the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial. In making this determination, the court draws all reasonable inferences in
favor of the non-moving party.
Bankruptcy Law > Practice & Proceedings > Adversary Proceedings > Discovery
Civil Procedure > Discovery > Methods > Admissions > General Overview
[HN15] Fed. R. Bankr. P. 7036 provides that Fed. R. Civ. P. 36 applies in adversary
bankruptcy proceedings.
Civil Procedure > Discovery > Methods > Admissions > Responses
[HN16] See Fed. R. Civ. P. 36(a)(3), (a)(4).
Civil Procedure > Discovery > Methods > Admissions > Responses
[HN17] Under Fed. R. Civ. P. 36, specific denials which fairly respond to the substance of
the matter are required.
Civil Procedure > Discovery> Methods > Admissions > General Overview
Civil Procedure > Summary Judgment > Supporting Materials > Discovery Materials
[HN18] The U.S. Court of Appeals for the Third Circuit has long recognized that deemed
admissions are sufficient to support orders of summary judgment.
Bankruptcy Law > Case Administration > Examiners, Officers & Trustees >
Preferential Transfers > Elements > General Overview
[HN19] To establish a claim for avoidance of a preferential transfer pursuant to 11
U.S.C.S. § 547, a party must establish that the transfer was: 1. to or for the benefit of a
creditor; 2. for or on account of an antecedent debt owed by the debtor before such
transfer was made; 3. made while the debtor was insolvent; 4. made — on or within 90
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days before the date of the filing of the petition; 5. that enables such creditor to receive
more than such creditor would receive if — a. the case were a case under Chapter 7 of this
title; b. the transfer had not been made; and c. such creditor received payment of such
debt to the extent provided by the provisions of this title. 11 U.S.C.S. § 547(b).
Bankruptcy Law > Case Administration > Examiners, Officers & Trustees >
Fraudulent Transfers > Elements
[HN20] To establish a claim for avoidance of a fraudulent transfer pursuant to 11 U.S.C.S.
§ 548(a)(1)(B), a party must show that within two (2) years of the petition date, the debtor
received less than a reasonably equivalent value in exchange for such transfer or
obligation, and: 1. was insolvent on the date that such transfer was made or such
obligation was incurred, or became insolvent as result of such transfer or obligation; 2. was
engaged in business or a transaction, or was about to engage in business or a transaction,
for which any property remaining with the debtor was an unreasonably small capital; 3.
intended to incur, or believed that the debtor would incur, debts that would be beyond the
debtors ability to pay as such debts matured; or 4. made such transfer to or for the benefit
of an insider, or incurred such obligation to or for the benefit of an insider, under an
employment contract and not in the ordinary course of business.
Bankruptcy Law > Case Administration > Examiners, Officers & Trustees >
Fraudulent Transfers > General Overview
[HN21] To establish a claim for the avoidance of a fraudulent transfer pursuant to 11
U.S.C.S. § 548(a)(1)(A), a party mush show that within two years of the petition date, the
debtor made such transfer or incurred such obligation with intent to hinder, delay, or
defraud any entity to which the debtor was or became, on or after the date that such
transfer was made or such obligation was incurred, indebted.
Bankruptcy Law > Case Administration > Examiners, Officers & Trustees >
Postpetition Transactions
[HN22] To establish a claim for the recovery of a post-petition transfer pursuant to 11
U.S.C.S. § 549, the appropriate inquiry is: (1) whether a transfer of property occurred; (2)
whether the property transferred was property of the estate; (3) whether the transfer
occurred after commencement of the bankruptcy case; and (4) whether the transfer was
authorized by the Bankruptcy Code.
Civil Procedure > Summary Judgment > Burdens of Production & Proof >
Nonmovants
[HN23] See Fed. R. Civ. P. 56(e).
Bankruptcy Law > Practice & Proceedings > Appeals > Standards of Review >
General Overview
Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend
[HN24] A bankruptcy court's denial of an appellant's motion for reconsideration is generally
reviewed for abuse of discretion. However, to the extent that the denial of reconsideration
is predicated on an issue of law, such an award is reviewed de novo; to the extent that the
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trial court's disposition of the reconsideration motion is based upon a factual finding, it is
reviewed for clear error.
Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend
[HN25] See D.V.I., R. 7.3.
Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend
[HN26] The purpose of a motion for reconsideration is to correct manifest errors of law or
fact or to present newly discovered evidence. Such motions are not substitutes for
appeals, and are not to be used as a vehicle for registering disagreement with the courts
initial decision, for rearguing matters already addressed by the court, or for raising
arguments that could have been raised before but were not.
Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend
[HN27] A motion for reconsideration cannot be used to relitigate old matters, raise
argument or present evidence that could have been raised prior to the entry of judgment.
Bankruptcy Law > Practice & Proceedings > Appeals > Procedures
[HN28] A claim will be deemed meritorious when the allegations, if established, would
support recovery by the claimant.
rii
COUNSEL: Jeffrey B. C. Moorhead, Esq., Jeffrey B. C. Moorhead, P.C., St. Croix,
USVI, For North Shore Real Estate Corp.
Christopher A. Kroblin, Esq., Erika Kellerhals, P.C., St. Thomas, USVI, For North Shore
Real Estate Corp.
Bernard C. Pattie, Esq., Law Offices of Barnard Pattie, P.C., St. Croix, USVI, For James P.
Carroll.
Fred Stevens, Esq., Fox Rothschild LP, New York, NY, For James P. Carroll.
JUDGES: GOMEZ, Chief Justice.
OPINION BY: Curtis V. Gomez
OPINION
MEMORANDUM OPPUGN
IJUly IL 2012)
Before the Court is the motion by James P. Carroll to dismiss this appeal for lack of
prosecution.
I FACTUAL AND PROCEDURAL BACKGROUND
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On June 30, 2010, North Shore Real Estate Corporation ("North Shore") filed a notice of
appeal from the May 26, 2010, judgment of the United States Bankruptcy Court for the
District of the Virgin Islands (the "Bankruptcy Division"), and the June 9, 2010, order of the
Bankruptcy Division denying North Shore's motion for reconsideration. On July 9, 2010,
the Court entered an Order stating that:
Appellant shall, not later than 10 days after the date of this Order, file and serve on the other parties the designation of
fli
record and statement of the issues to be presented, fading with the Appeal may be dismissed for failure to
prosecute
Appellant's brief shall be filed and served within 30 days of the date of this Order, or if the designated record includes a
transcript, within 15 days after the transcript is Ned. whichever canes later ....
(Order 1-2, July 9, 2010, ECF No. 2).
North Shore did not file a designation of record nor a statement of the issues within the
time provided in the July 9, 2010, order. North Shore did not file its brief within the time
provided in the order.
On March 9, 2011, North Shore filed a motion for leave to file an untimely designation of
record, statement of issues, and brief. North Shore attached to its motion a designation of
record and statement of issues. North Shore did not attach a brief.
Subsequently, James P. Carroll, Chapter 7 Trustee ("Carroll"), filed a motion to dismiss
this matter for lack of prosecution. North Shore did not file an opposition.
On March 28, 2012, this Court entered an order stating that:
. North Shore shall, not later than April 2. 2012. file and serve on James P. Carroll the designation of record and a
nj
statement of issues to be presented, failing which this appeal may be dismissed for failure to prosecute...
North Shore's brief shaft not later than April 10. 2012. be filed and served on James P. Carroll, failing which this
appeal may be dismissed for failure to prosecute...
(March 28, 2012, Order 3-4, ECF No. 8).
The Court found as moot the motions filed by North Shore and Carroll.
North Shore did not file a designation of record nor a statement of the issues within the
time provided in the March 28, 2012, order. North Shore did not file its brief within the time
provided in the order.
Carroll now moves again for dismissal of this appeal for lack of prosecution. North Shore
has not filed an opposition.
II. DISCUSSION
II-IN1] "Under Rule 8001(a) of the Federal Rules of Bankruptcy Procedure, the District
Court is empowered to dismiss an appeal for failure to prosecute or otherwise follow the
procedures set out in the Bankruptcy Rules." In re Richardson Industrial Contractors, Inc.,
189 Fed. Appx. 93, at *96 (3d Cir. 2006). Before such a dismissal occurs, however, a
district court must consider six factors outlined in Poulis v. State Farm Fire and Cas. Co.,
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747 F.2d 863, 868 (3d Cir. 1984) [hereinafter Poulis]. In Poulis, the Third Circuit stated that
a district court [*4] must balance the following factors:
1) the extent of the partys personal responsibility (2) the prejudice to the adversary caused by the failure to meet
scheduling orders and respond to discovery. (3)a history of dilatoriness: (4) whether the conduct of the party or the
attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which ertails an analysis of
alternative sanctions: and (6) the meritoriousness of the claim or defense.
Id. (explaining that "dismissal is a drastic sanction and should be reserved for those cases
where there is a clear record of delay or contumacious conduct by the plaintiff')(alteration
in original); see also In re E Toys Inc., 263 Fed. Appx. 235, 237 (3d Cir. 2008) (affirming
the district court's dismissal of a bankruptcy appeal for failure to prosecute upon
consideration of the Poulis factors).
1 IFIN2j 'fin appeal from a judgment, order, or decree of a barkruptcy judge to a district court or bankruptcy appellate panel ...
shall be taken by Ming a notice of appeal with the clerk within the time allowed by Rule 8002. An appellant's failure to take any
step other than timely filing a nonce of appeal [•6j does not affect the validity of the appeal. but is grand only for such action
as the district court a bankruptcy appellate panel deems appropriate. which may include dismissal of the appeal...." FED. R.
BANKR. P. 8001(a) (2011).
[HN3] "Not all of the[] Poulis factors need be met for a district court to find dismissal is
warranted." Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). However, courts must
consider and balance all six Poulis factors before dismissing a case with prejudice, and all
doubts must be resolved in favor of an adjudication on the merits. See $8,221,877.16 in
U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003) ("[W]e have always required
consideration and balancing of all six of the factors, and have recommended the resolution
of any doubts in favor of adjudication on the merits."); see also Bjorgung, 197 Fed. Appx.
at 125-26 ("Although '[n]ot all of the Poulis factors need be satisfied in order to dismiss a
complaint' they must all be considered") (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373
(3d Cir. 1992)).
III. ANALYSIS
In In re Richardson Industrial Contractors, Inc., 189 Fed. Appx. 93 (3d Cir. 2006), the
[*6]
United States Court of Appeals for the Third Circuit addressed the relevant factors
that a district court must consider before dismissing a bankruptcy appeal for failure to
prosecute. In that case, the district court dismissed a creditors appeal with prejudice for
failure to comply with the mandates of the Federal Rules of Bankruptcy Procedure. In so
doing, the district court considered only two of the six Pocks factors: the creditor's bad faith
in requesting a second extension of time in which to file his brief and the ineffectiveness of
alternative sanctions. The creditor appealed the district court's decision.
On appeal, the Third Circuit found that, in addition to not considering all six Pouts factors,
the district court's discussion of two factors was limited and did not set out the basis for its
conclusions in such a way to permit meaningful review of its decision.
In reviewing similar cases in other circuits, the Richardson court noted that [HN4] "
'[d]ismissal typically occurs in cases showing consistently dilatory conduct or the complete
failure to take any steps other than the mere filing of a notice of appeal.' " Richardson, 189
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Fed. Appx. 93, at *97 (quoting In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir.
1985)); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) ['7] (upholding
dismissal of bankruptcy appeal for failure to follow Bankruptcy Rules or timely file appeal
brief where plaintiffs provided no explanation or excuse for noncompliance); In re
Champion, 895 F.2d 490, 492 (8th Cir. 1990) (finding no abuse of discretion in dismissing
appeal where appellant had not filed designation of record or statement of issues required
by Bankruptcy Rule 8006); In m Tampa Chain Co., 835 F.2d 54, 56 (2d Cir. 1987)
(affirming dismissal of bankruptcy appeal for failure to file a brief for seven months after the
due date or provide any explanation for the failure, even after the court's inquiry into
delinquency).
Given that backdrop, the Court will now assess whether the Poulis factors favor or disfavor
dismissal.
1. Extent of North Shore's Personal ROsponsidIrly
The first Poulis factor assesses the extent of the appellant's personal responsibility. 747
F.2d at 868. North Shore has suggested that its counsel is responsible for its failure to
follow the Court's scheduling order. North Shore averred that,
Defendant. Chapter 7 Debtor Jeffrey J. Prosser (Case No. 06-30009), and his farndy. including Dawn Prosser. the
owner of North Store. are overwrought and under NI assault with numerous and often duplicate suits replete with
continuous motions and actions...
(Appellant's Mem. Supp. Mot. Leave to File Untimely Resp. 2, ECF No. 4). North Shore
also contended that it is "without the financial resources to employ an adequate number of
counsel that have the time availability to meet the relentless and continuous assault and
actions..." Id. North Shore went on to aver that it has "mounted a defense with far too small
group [sic] of counsel and others which have committed what time they can and what effort
they can, when possible, for little, or in most cases, for no compensation." Id.
Indeed, North Shore referred generally to the commotion of the bankruptcy proceedings in
explaining its failure to comply with the original scheduling order in this matter. North Shore
also pointed to the limited size of its legal team and financial resources. Because it seems
that North Shore's counsel was at least somewhat responsible for North Shore's failure to
comply with the Court's original scheduling order, the first Poulis factor does not
necessarily weigh in favor of dismissal.
However, [HN5] North Shore's "lack of responsibility for [its] counsel's dilatory conduct
[a 9] is not dispositive, because a client cannot always avoid the consequences of the acts
or omissions of its counsel." See Poulis, 747 F.2d at 868; see also Ware v. Rodale Press,
Inc., 322 F.3d 218, 222 (3d Cir. 2003)("[E]ven assuming that WCI does not bear
responsibility for its counsel's conduct, consideration of the remaining factors still compels
affirming the District Court's decision to sanction WCI and dismiss the breach of contract
claim."); cf. Lee v. Sunrise Senior Living, 455 Fed. Appx. 199, 201-202 (3d Cir. 2011)
(finding that the pro se plaintiff was "fully responsible for her conduct.") The Court also
notes that North Shore has not offered any explanation for its failure to comply with the
March 28, 2012, scheduling order.
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2 PrehjUdICO 10 Carroll
The second Poulis factor considers prejudice to the appellee caused by the appellant's
failure to meet scheduling orders and respond to discovery. 747 F.2d at 868. [HN6]
Prejudice for the purpose of the Poulis factors "does not mean 'irremediable harm."' See
Ware, 322 F.3d at 222; see also Curtis T. Bedwell and Sons, Inc. v. Intl Fidelity Ins. Co.,
rioi
843 F.2d 683, 693-94 (3d Cir. 1988) (rejecting the argument that "the district court
should not have dismissed its claim ... unless the harm to the other parties amounted to
'irremediable prejudice"'). Rather, the burden imposed by impeding the opposing party's
ability to prepare a meaningful litigation strategy has been held to be sufficiently
prejudicial. See Ware, 322 F.3d at 222.
Carroll argues that he has "incurred costs and fees of bringing the underlying adversary
proceeding and opposing North Shore's late filings." (Carroll's Opp'n Mot. Leave to File
Untimely Resp. 5, ECF No. 5). Carroll also argues that he "should not be made to incur the
additional costs to oppose an appeal that North Shore failed to address for several
months, particularly when North Shore's current default merely continues its dilatory
performance in the underlying bankruptcy proceeding." Id.
Additional costs and fees do not necessarily amount to prejudice. However, it is clear that
North Shore's conduct has prejudiced Carroll by hampering his ability to resolve the
underlying bankruptcy matter. See Lee, 455 Fed. Appx. at 201-202 (finding that the
plaintiffs conduct prejudiced the defendants by "impeding their efforts to resolve [the]
rill
case, causing them to file unnecessary motions, and requiring them to incur extra
expenses.") The Court also notes that the Bankruptcy Division has stayed execution as to
the bank account involved in the underlying matter, pending resolution of this appeal.
Consequently, North Shore's lengthy delay has had an impact on the Bankruptcy Division's
proceedings. Thus, the Court finds that the second Poulis factor weighs in favor of
dismissal.
3. History or Dostortness
[HN7] The third Poulis factor considers the appellant's history of dilatoriness. 747 F.2d at
868. North Shore did not file its brief within the original time period set by the Court. North
Shore also failed to move for an extension of time within which to file its brief until more
than six months after the Court's deadline. Additionally, North Shore did not file its brief
within the extended time period set by the Court. Indeed, rather than trying to make up for
lost time in the more than seven months since its brief was originally due, North Shore has
elected not to file even a brief in compliance with the Court's extended time period.
Similarly, North Shore did not file oppositions to Carroll's motions to dismiss this appeal.
The Court also notes the history leading ['12 ] up to this appeal. As the Bankruptcy Court
noted in its May 26, 2010, judgment,
As established by the record of the entire Adversary and the docket. North Shore has set upon a pattern and practice
of filing pleadings after the deadlines have passed: (1) North Shore's initial opposition to the first Motion for Summary
Judgment was due on November 2.2008. but was actually filed on November 30. 2009: more than a year after the due
date. (2) North Shore obtained leave of court to file a late opposition to Trustee% motion for entry of default and default
judgment. having missed that deadline. (3) North Shore filed a late response to the renewed Motion for Summary
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Judgment. without seeking leave of court. (4) North Shore has never complied with the discovery deadlines. North
Shore apparently views court-imposed deadlines as suggestions rather than as Orders compelling timely performance.
(May 26, 2010, Bankr. Summ. J. 7, ECF No. 1, Ex. 3).
North Shore has a sufficient history of dilatoriness in this matter such that the third Poulis
factor weighs in favor of dismissal. See, e.g., 8uccolo, 308 Fed. Appx. 574, at *575
[l 3]
(affirming district court's dismissal of the bankruptcy appeal for failure to prosecute
where appellant "did not comply with the Bankruptcy Rules for filing a brief within 15 days
of the docketing of his appeal... or for providing for the transcript of the Bankruptcy Court
proceedings..." noting that [HN8] "[e]ither of these violations is grounds for dismissal
under Bankruptcy Rule 8001").
4. Willfulness and Sod Faith
(HN9] The fourth Poulis factor considers whether the conduct of the appellant or of the
appellant's attorney was willful or in bad faith. 747 F.2d at 868. North Shore failed to
comply with the Court's original scheduling order, failed to move for an extension of time
within which to file its brief until more than six months after the original filing deadline, and
has failed to comply with the Court's new scheduling order. In explaining its failure to follow
the Court's original scheduling order, North Shore referred generally to the hustle and
bustle of the bankruptcy proceedings. North Shore also pointed to the size of its legal team
and financial resources.
North Shore's explanations for its delays are unpersuasive. By failing to file an appellant's
brief or timely move for an extension of time within which to do so, North Shore has
demonstrated a willful [*14] disregard for the Court's scheduling orders and for the
appellate process in general. See, e.g., In re Toys Inc., 263 Fed. Appx. at 238 (finding that
"the record provides a basis to conclude that [the appellant's] conduct showed willful
disregard for the appellate process" because "[h]e ignored the deadlines issued by the
District Court"). The fourth Poulis factor therefore weighs in favor of dismissal.
5. Effectiveness or Alternative Sanctions
(HN10) The fifth Poulis factor assesses the effectiveness of sanctions other than
dismissal. 747 F.2d at 868. North Shore has not suggested any such sanctions. A possible
alternative to dismissal would be to grant North Shore an extension of time within which to
file its appellant's brief. However, the Court has already granted such an extension.
Granting any further extension would reward North Shore's blatant failure to comply with
this Court's orders by allowing it to file an opening brief more than 22 months after the
commencement of its appeal.
The Court could also impose a fine against North Shore's counsel as a penalty for its
failure to comply with the scheduling orders in this matter. See Poulis, 747 F.2d at 869.
Alternatively, the Court could [*1 5 ] consider the propriety of ordering North Shore to pay
Carroll's attorney's fees associated with filing the instant motion. See id. However, North
Shore has made it clear that its financial resources available to prosecute this matter are
very limited. Thus, it is unlikely that North Shore will have the ability to comply with a
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sanctions order. Additionally, the ineffectiveness of the Court's prior orders setting
deadlines for North Shore to file its appellant's brief, as well as North Shore's failure to
respond to Carroll's motions to dismiss gives the Court reason to doubt the effectiveness
of such sanctions.
North Shore has demonstrated little urgency in litigating its appeal. In addition to not filing
a timely brief, it has elected not to file an opposition to Carroll's motions to dismiss. As
such, the Court doubts the effectiveness of alternative sanctions. Cf. Richardson, 189 Fed.
Appx. 93, at *98 (finding dismissal inappropriate where appellant requested two extensions
and filed his brief prior to the District Court's order of dismissal). Based on North Shore's
absence thus far it is not evident that alternative sanctions will prompt it to take action in
prosecuting this appeal. (**16] Thus, the ineffectiveness of alternative sanctions weighs in
favor of dismissal.
6 Merit of North Shores Appeal
[HN11] The sixth Poulis factor considers the meritoriousness of the appellant's claim. 747
F.2d at 868. "Ordinarily, '[a] claim, or defense, will be deemed meritorious when the
allegations of the [motion], if established [], would support recovery by plaintiff or would
constitute a complete defense." Buccolo, 308 Fed. Appx. 574, at n.1 (quoting Poulis, 747
F.2d at 869-70). In this appeal, North Shore challenges the Bankruptcy Division's grant of
summary judgment to Carroll in the amount of $115,140. North Shore also challenges the
Bankruptcy Division's decision to deny its motion for reconsideration of the summary
judgment.
a Summary Judgment
[HN12) In reviewing a determination of a bankruptcy court's grant of summary judgment, a
reviewing court subjects the bankruptcy court's "legal determinations to plenary review,
reviewing its factual findings for clear error, and considering its exercise of discretion for
abuse thereof." In re Atamian, 300 Fed. Appx. 175, 176 (3d Cir. 2008)(citations omitted).
A bankruptcy court may grant summary judgment if "the pleadings, the discovery and
disclosure rin materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law." FED. R.
Qv. P. 56(c) (hereafter referred to as "Rule 56(c)"); see also Hersh v. Allen Products Co.,
789 F.2d 230, 232 (3d Cir. 1986).
[HN13] The movant has the initial burden of showing that there is no genuine issue of
material fact. Gans v. Mundy, 762 F.2d 338, 342 (3d Cir. 1985). Once the initial burden is
met it shifts to the non-moving party to establish specific facts showing there is a genuine
issue for trial. Id. The non-moving party "may not rest upon mere allegations, general
denials, or ... vague statements ... ." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.
1991). "[T]here is no issue for trial unless there is sufficient evidence favoring the non-
moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
[HN14] "[Alt the summary judgment stage the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
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riff]
issue for trial." Id. In making this determination, this Court draws all reasonable
inferences in favor of the non-moving party. See Bd. of Ethic. v. Earls, 536 U.S. 822, 850,
122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002); see also Armbruster v. Unisys Corp 32 F.3d
768, 777 (3d Cir. 1994).
In Carroll's motion for summary judgment he sought "a determination that $72,720 in
prepetition transfers and $42,420 in postpetition [sic] transfers from Debtor to North Shore
Real Estate Corporation were fraudulent transfers, preferences or otherwise avoidable
pursuant to 11 U.S.C. §§ 544, 547, 548 and 549, and recoverable under § 550." (May 26,
2010, Bankr. Summ. J. Mem. Op. 1, ECF No. 1, Ex. 3)(citation omitted) Carroll asserted
that "North Shore [] failed to respond to the Trustee's discovery requests, and ... all of the
Requests for Admissions were deemed admitted and, accordingly, there [were] no genuine
issues of material fact and the Trustee [was] entitled to judgment as a matter of law."
(Carroll Renewed Mot. Summ. J. 114, Bankr. Case No. 06-30009, Adv. Pro. No. 08-03048,
ECF No. 30).
North Shore asserted in its opposition to Carroll's motion to dismiss that it indeed
responded to Carroll's requests for admission. It explained that its response came in the
form of the affidavit of Dawn Prosser, wife of the debtor [*ig] in the underlying bankruptcy
proceedings.
After reviewing the record, the bankruptcy court found that "North Shore [] failed to
respond to or answer any of Trustee's discovery requests, including the ... Requests for
Admissions." (May 26, 2010, Bankr. Summ. J. Mem. Op. 2, ECF No. 1, Ex. 3). As such, it
determined that the requests for admissions were deemed admitted.
[HN15] Federal Rule of Bankruptcy Procedure 7036 provides that Federal Rule of Civil
Procedure 36 applies in adversary bankruptcy proceedings. Rule 36 of the Federal Rules
of Civil Procedure, in pertinent part, provides
(HN16I (a) ..
(3) Time to Respond, Effect of Not Responding. A matter is admitted unless, within 30 days after
being served, the party to whom the request is directed serves on the requesting party a written
answer or objection addressed to the matter and signed by the party or its attorney....
(4) Answer. It a matter is not admitted, the answer must specifically deny or state in detail why the
answering party cannot truthfully admit or deny it. A denial must fairly respond to the stbstance of the
matter, and when good faith requires that a party qualify an answer or deny only a part of a matter, the
r20]
answer must specify the party admitted and qualify or deny the rest. The answering party may
assert a lack of knowledge or information as a reason for fading to admit or deny only if the party
states that it has made reasonable inqtery and that the information it knows or can readily obtain is in
sufficient to enable it to admit or deny.
FED. R. Civ. P. 36 (a)(3), (a)(4).
After reviewing Dawn Prosser's affidavit, the Court finds that the numbered paragraphs in
the affidavit do not correspond to Carroll's numbered requests for admission. Looking at
the substance of the affidavit, the Court finds that the affidavit does not address all of
Carroll's requests for admission. The requests for admission which are not addressed are
deemed denied. See FED. R. Civ. P. 36 (a)(3).
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2 The requests which are not addressed in Dawn Prosser's affidavit are numbeis 2. 3. 4. 12.14,15. 17. 19. 20, 21. and 23.
Furthermore, the requests for admission which are addressed in the affidavit are simply
3
general denials, such as "I deny that..." (See Dawn Prosser Aff. 11112-12). The denials lack
any substance or explanation. Such general denials do not comply with the requirements
of Federal Rule of Civil Procedure 36. See FED. R. Civ. P. 36 [`21] (requiring [HN17J
specific denials which "fairly respond to the substance of the matter.") As such, the
generally denied requests for admission are deemed admitted. See id.
3 Dawn Prosser's affidavit is written so as to generally deny the information in requests 1. 5. 6. 7. 8. 9. 10. 11. 13. 16. 18. and
22. (Dawn Prosser Aft. gg 2-12). There are no facts or evidence identified upon which the denials are based.
IFIN18) The Third Circuit has long recognized that deemed admissions "are sufficient to
support orders of summary judgment." Kelvin Cryosystems Inc. v. Lightnin, 252 Fed. Appx.
469, 472 (3d Cir. 2007)(citations omitted); see also DIRECTV, Inc. v. Jarvis, 262 Fed.
Appx. 413, 416 (3d Cir. 2008) (affirming the district court's entry of summary judgment
based on the appellant's failure to respond to requests for admission).
[HN19) To establish a claim for avoidance of a preferential transfer pursuant to 11 U.S.C.
§ 547, a party must establish that the transfer was:
1. to or for the benefit of a creditor;
2. for or on account of an antecedent debt owed by the debtor before such transfer was made;
3. made while the debtor was insolvent;
4. made — on or within 90 days before the date of the filing of the petition; r22]
5. that enables such creditor to receive more than such creditor would receive if —
a. the case were a case under Chapter 7 of this title:
b. the transfer led not been made: and
c. such creditor received payment of such debt to the extent provided by the provisions of this title
11 U.S.C. § 547(b).
[HN20) To establish a claim for avoidance of a fraudulent transfer pursuant to 11 U.S.C. §
548(a)(1)(B), a party must show that within two (2) years of the petition date, the debtor
received less than a reasonably equivalent value in exchange for such transfer or
obligation, and:
1. was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as
resuk of such transfer or obligation;
2. was engaged in business or a transaction. or was about to engage in business or a transaction. for which any
property remaining with the debtor was an unreasonably small capital;
3. intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as
such debts matured; or
4. made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider.
under an employment contract and rnj not in the ordinary course of business.
11 U.S.C. § 548(a)(1)(3).
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[FIN21] To establish a claim for the avoidance of a fraudulent transfer pursuant to 11
U.S.C. § 548(a)(1)(A), a party mush show that within two years of the petition date, the
debtor made such transfer or incurred such obligation with intent to hinder, delay, or
defraud any entity to which the debtor was or became, on or after the date that such
transfer was made or such obligation was incurred, indebted.
[HN22] To establish a claim for the recovery of a post-petition transfer pursuant to 11
U.S.C. § 549, the appropriate inquiry is: (1) whether a transfer of property occurred; (2)
whether the property transferred was property of the estate; (3) whether the transfer
occurred after commencement of the bankruptcy case; and (4) whether the transfer was
authorized by the Bankruptcy Code. 11 U.S.C. § 549.
Pursuant to 11 U.S.C. § 550, a trustee may recover transfers avoided under 11 U.S.C. §§
544, 547, 548, and 549, for the benefit of the estate, the property transferred, or if the court
so orders, the value of such property, form the initial transferee of such transfer or the
entity for whose benefit such transfer was made.
["
Requests for admission 24] numbered 1, 5, 6, 7, 8, 9, 10, 11, and 13, 16, 18, 22, and 23,
correspond to the elements required to establish each of Carroll's claims. Each relevant
request was deemed admitted. Thus, the bankruptcy court did not err in finding that there
remained no genuine issue as to any material fact. As such, the burden was properly
shifted to North Shore to show a genuine issue remaining for trial.
North Shore did not present any evidence in support of judgment in its favor. It merely
pointed the court again to Dawn Prosser's affidavit. As previously discussed, the affidavit
contains only general denials. Such general denials are not sufficient to satisfy North
Shore's burden of proof. See FED. R. Civ. P. 56(e) ( (HN23] "an adverse party may not rest
upon the mere allegations or denials of the adverse party's pleadings, but the adverse
party's response, by affidavits or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.") Thus, the bankruptcy court did not err
in finding that North Shore failed to meet its burden.
Based on a plenary review of the record, the Court finds that each of the elements required
['
to establish Carroll's claims were 25] satisfied by facts underlying North Shore's deemed
admissions. As such, the bankruptcy court did not err in concluding that Carroll was
entitled to judgment as a matter of law.
D. Morton lot ReconsninDon
In denying North Shore's motion for reconsideration, the Bankruptcy Division found that
North Shore pointed to no newly discovered evidence or any other basis for a grant of
reconsideration.
(HN24) A bankruptcy court's denial of an appellant's motion for reconsideration is
generally reviewed for abuse of discretion. See generally Max's Seafood Cafe v.
Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). "However, to the extent that the denial of
reconsideration is predicated on an issue of law, such an award is reviewed de novo; to
the extent that the (trial court's] disposition of the reconsideration motion is based upon a
factual finding, it is reviewed for clear error." Id.
Local Rule of Civil Procedure 7.3 provides that:
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thiN25] A party may Me a motion asking the court to reconsider ds order or decision.. 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
LRCI 7.3 (2008). r26]
(HN26) The purpose of a motion for reconsideration "is to correct manifest errors of law or
fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985). Such motions are not substitutes for appeals, and are not to be used
as "a vehicle for registering disagreement with the court's initial decision, for rearguing
matters already addressed by the court, or for raising arguments that could have been
raised before but were not." Bostic v. AT&T of the V.I., 312 F.Supp. 2d 731, 733, 45 V.I.
553 (D.V.I. 2004).
In its motion for reconsideration, North Shore made two arguments. First, it argued that the
bankruptcy court should reconsider because it improperly failed to consider Dawn
Prosser's affidavit in deciding Carroll's motion for summary judgment. That argument is
unsupported by the record. This Court has herein cited to numerous references in the
bankruptcy court's memorandum opinion where it refers to and analyzes the substance of
Dawn Prosser's affidavit. As such, the bankruptcy court did not err in refusing to reconsider
on that basis.
Second, North Shore argued that the court should grant its motion because the underlying
complaint contains "factually 1'27] untrue" allegations. (North Shore Mot. Recons. 6-7,
Adv. Pro. No. 08-03048, ECF No. 36). That argument ignores the numerous opportunities
which North Shore had to oppose Carroll's factual assertions.
Carroll served North Shore with various requests for discovery, including requests for
admissions. North Shore failed to adequately respond to such requests. Thereafter, Carroll
filed two motions for summary judgment. North Shore had the opportunity to file
oppositions to each of those motions. Although North Shore was tardy in filing such
oppositions, the bankruptcy court nonetheless considered them in its memorandum
opinion. Finally, the bankruptcy court held a hearing on Carroll's second motion for
summary judgment. North Shore had the opportunity to challenge any of Carroll's factual
assertions and to submit any evidence in support of its challenges at that hearing. North
Shore failed to submit sufficient evidence supporting its assertions at that time.
(FIN27) "A motion for reconsideration cannot be used to relitigate old matters, raise
argument or present evidence that could have been raised prior to the entry of judgment."
See Dunkley v. Mellon Investor Servs., 378 Fed. Appx. 169, 172 (3rd Cir. 2010)(internal
r28]
citation omitted). Yet, that is precisely what North Shore has done. Indeed, the
information that North Shore presents was available to it at the time when it filed its
opposition to Carroll's motion for summary judgment. In an effort to relitigate this matter,
North Shore now seeks to rehash procedurally admitted factual issues. That effort is not
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supported by the law. See id, As such, the bankruptcy court did not err in refusing to
reconsider on that basis.
Upon review of the Bankruptcy Division's summary judgment and order denying
reconsideration, the Court finds that the likelihood that North Shore could successfully
challenge the bankruptcy court's exercise of its broad discretion as to such matters is
minimal. Thus, the final Poulis factor weighs in favor of dismissal. Cf. Buccolo, 308 Fed.
Appx. 574, at n.1 ( [HN28] "[a] claim ... will be deemed meritorious when the allegations ...
if established [], would support recovery by" the claimant) (internal citations omitted) (first
alteration in the original).
N. CONCLUSION
Of the six Poulis factors, five weigh in favor of dismissal and one weighs against dismissal.
The Court takes into account the possibility that North Shore's counsel bears p29] some
of the responsibility for its failure to follow the Court's scheduling order. Nonetheless, on
balance, the Poulis factors demonstrate that dismissal of this appeal is an appropriate
sanction for North Shore's failure to file its appellant's brief. or otherwise comply with this
Court's scheduling orders. See In re Buccolo, 308 Fed. Appx. 574, 576 (3d Cir.
2009)(finding that "even if the consideration of the merits of [the appellant's] claim or
defense does not tip the scales for or against dismissal, it cannot be said that the District
Court abused its discretion in concluding that on balance, dismissal was
warranted.")(emphasis added); In re E Toys Inc., 263 Fed. Appx. 235, 238 (3d Cir. 2008)
(affirming the district court's ruling that the Poulis factors favored dismissal of a bankruptcy
appeal as a sanction for the appellant's "repeated failures to adhere to ordered briefing
deadlines").
For the reasons discussed above, the Court will grant Carroll's motion to dismiss for failure
to prosecute. An appropriate order follows.
JULITO A. FRANCIS, Petitioner v. DEBRA L. WRIGHT-
FRANCIS, Respondent
Family No. ST-10-DI-226
Superior Court of the Virgin Islands, Division of St. Thomas
and St. John
2014 V.I. LEXIS 45; 61 V.I. 13
July 14, 2014, Decided
July 14, 2014, Filed
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CASE SUMMARY:
OVERVIEW: HOLDINGS. [1]-When the parties had lived in the marital home for 7 years of
their 21-year marriage, the husband's mother occupied an apartment on the property, the
wife had the means to secure alternative housing and had not shown the need or desire to
remain there. and the husband acquired the property from his mother. the husband was
awarded possession under V.I. Code Ann. tit. 33. § 2305(d). minus an award to the wife for
her interest and contributions; [2]-The wife's medical degree was not marital property
under V.I. Code Ann. tit. 16. § 109, as the husband had not been compelled to delay or
relinquish his own education or goals, offered no evidence with which to calculate the
value of the degree. and himself had an advanced degree; [3]-The husband had not
wasted marital assets by withdrawing funds from his annuity. as they were used to pay
reasonable and necessary expenses
OUTCOME: The court distributed the parties' marital homestead and personal property.
CORE TERMS: marital, homestead, marriage, divorce, dollars, equitable, marital property,
personal property, pension, spouse's, career, educational, apartment, retirement accounts,
daughter, couple, mortgage, real property, retirement plans, divide, standard of living,
ownership, household, jointly, dissolution, retirement, terminated, occupied, earnings, net
worth
LexisNexis(R) Headnotes
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Equitable Distribution > General Overview
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Partition
Civil Procedure > Judicial Officers > Judges > Discretion
[HN1] In an action for divorce, the court has the authority to equitably divide joint personal
property and real property, limited to the marital homestead as defined in V.I. Code Ann.
tit. 33, § 2305(d). Real property owned by the couple, other than the marital homestead, is
divided by way of a civil partition action. When determining the equity of the distribution,
the court also has broad discretion to consider the case's most salient facts. The Supreme
Court of the Virgin Islands further refined the court's discretion to divide property by
eliminating marital fault as a factor in dividing the homestead. The doctrine of equitable
distribution is applied to effectuate a fair and just division of the property between the
parties. As its name suggests, equitable distribution does not necessarily mean "equal,"
only "equitable."
Family Law > Marital Duties & Rights > Property Rights > Homestead Rights
[HN2] Pursuant to V.I. Code Ann. tit. 33, § 2305(a). a homestead is defined as the abode
including land and buildings, owned by, and actually occupied by, a person, or by
members of his family free of rental charges. Although the Virgin Islands Code does not
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expressly define a marital homestead, both the United States Court of Appeals for the
Third Circuit and the Appellate Division of the United States District Court for the Virgin
Islands have interpreted § 2305(a), (c) to hold that a "marital homestead" is any
homestead in which a husband and wife both reside during the marriage and that is owned
by one or both of the spouses.
Civil Procedure > Judicial Officers > Judges > Discretion
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Marital Property
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Separate Property
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Equitable Distribution > General Overview
[HN3] The court may distribute personal property in accordance with V.I. Code Ann. tit. 16,
§ 109(4). However, the statute does not define marital property. Whether an asset is
marital property or separate property for purposes of distribution of the marital estate is a
matter reserved to the sound discretion of the trial court. Once these distinctions have
been made, the trial judge has broad equitable powers in disposing of marital property.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Marital Property
[HN4]Although not specifically defined, marital property has been construed to encompass
any property which the couple acquired during the marriage and which is subject to
equitable distribution upon divorce.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Marital Property
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Classification > Retirement Benefits > Pensions
[HN5] Considering the tremendous statutory examples and case law from other
jurisdictions holding pension funds as marital property, the Virgin Islands has determined
that a pension fund is marital personal property, subject to claim by the other spouse upon
divorce. To the extent earned during the marriage, the pension benefits represent
compensation for marital effort and are substitutes for current earnings which would have
increased the marital standard of living or would have been converted into other assets
divisible at dissolution. Subjecting the benefits to division is just, because in most cases
the retirement benefits constitute the most valuable asset the couple has acquired and
they both have relied upon their pension payments for security in their older years.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Classification > Degrees, Licenses & Enhanced Earnings
[HN6] Most states hold that an educational degree is not marital property. Courts have
consistently considered whether one spouse had postponed his or her own career and
educational goals to support and contribute to the career and educational goals of the
other spouse. They also acknowledge the injustice that occurs after a couple collectively
works towards the attainment of an advanced educational degree or career goal, the
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expectation of a higher standard of living in the future can be frustrated by the dissolution
of a marriage.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce>
Property Distribution > Classification > Degrees, Licenses & Enhanced Earnings
[HN7] Many states have compared professional degrees to pension or retirement plans
when establishing what constitutes marital property. Pension and retirement plans entitle
an owner to a definite amount at a certain date, which an individual has a contractual right
to receive. Professional degrees rely on uncertain future events and provide only an
expectation of enhanced income. The value of a professional degree is speculative and
dependent upon the attributes and future choices of its possessor to be fairly valued.
Family Law > Marriage > General Overview
[HN8] The Virgin Islands has long viewed marriage as a partnership or joint venture,
whereby both parties collaborate for a common purpose and contribute toward its success.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce>
Jurisdiction > General Overview
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce>
Property Distribution > General Overview
[HN9] The court has the authority to divide the personal property in divorce action even
after a divorce decree has been issued. The trial court will be required to issue rulings on
post-divorce ownership of personal property such as cars, boats, electronics, jewelry,
shares of stock, bonds and monies deposited with financial institutions.
Civil Procedure> Sanctions > Contempt > Civil Contempt
[HN10] A party may be held in civil contempt for failure to comply with a court order if (1)
the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of
noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted
to comply in a reasonable manner.
SUMMARY: Division of property in divorce case. The Superior Court, Watlington, J.,
divided the parties' real and personal property.
HEADNOTES
VIRGIN ISLANDS OFFICIAL REPORTS HEADNOTES
(Headnotes classified to Virgin Islands Digest)
1. Divorce § 11.50--Division of Property--Power of Court In an action for divorce, the
court has the authority to equitably divide joint personal property and real property, limited
to the marital homestead. Real property owned by the couple, other than the marital
homestead, is divided by way of a civil partition action. When determining the equity of the
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distribution, the court also has broad discretion to consider the case's most salient facts.
The Supreme Court of the Virgin Islands further refined the court's discretion to divide
property by eliminating marital fault as a factor in dividing the homestead. The doctrine of
equitable distribution is applied to effectuate a fair and just division of the property between
the parties. As its name suggests, equitable distribution does not necessarily mean
"equal," only "equitable." 33 V.I.C. § 2305(d).
2. Property § 15.05--Homestead--Generally A homestead is defined as the abode
including land and buildings, owned by, and actually occupied by, a person, or by
members of his family free of rental charges. Although the Virgin Islands Code does not
expressly define a marital homestead, both the United States Court of Appeals for the
Third Circuit and the Appellate Division of the United States District Court for the Virgin
Islands have interpreted the applicable statute to hold that a "marital homestead" is any
homestead in which a husband and wife both reside during the marriage and that is owned
by one or both of the spouses. 33 V.I.C. § 2305(a), (c).
3. Property § 15.30--Homestead--Divorce When the divorcing parties had lived in the
marital homestead for 7 years of their 21-year marriage, the husband's mother occupied
an apartment on the property, the wife had the means to secure alternative housing and
had not shown the need or desire to remain there, and the husband had acquired the
r.14]
property from his mother, the husband was awarded possession, minus an award
to the wife for her interest and contributions. 33 V.I.C. § 2305.
4. Divorce § 11.50--Division of Property--Power of Court The court may distribute
personal property in accordance with the statute governing final orders in divorce cases.
However, the statute does not define marital property. Whether an asset is marital property
or separate property for purposes of distribution of the marital estate is a matter reserved
to the sound discretion of the trial court. Once these distinctions have been made, the trial
judge has broad equitable powers in disposing of marital property. 16 V.I.C. § 109.
5. Divorce § 11.70--Division of Property--Types of Property Interests Although not
specifically defined, marital property has been construed to encompass any property which
the couple acquired during the marriage and which is subject to equitable distribution upon
divorce.
6. Divorce § 11.45--Division of Property--Pensions Considering the tremendous
statutory examples and case law from other jurisdictions holding pension funds as marital
property, the Virgin Islands has determined that a pension fund is marital personal
property, subject to claim by the other spouse upon divorce. To the extent earned during
the marriage, the pension benefits represent compensation for marital effort and are
substitutes for current earnings which would have increased the marital standard of living
or would have been converted into other assets divisible at dissolution. Subjecting the
benefits to division is just, because in most cases the retirement benefits constitute the
most valuable asset the couple has acquired and they both have relied upon their pension
payments for security in their older years.
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7. Divorce § 11.40--Division of Property--Particular Cases When neither party had
made sufficient information available to the court to justify the division of their respective
retirement accounts, but it appeared that they had about the same amount in their funds,
each party was entitled to retain his or her existing interest in his or her account. 16 V.I.C.
§ 109.
8. Divorce § 11.70--Division of Property--Types of Property Interests Most states hold
that an educational degree is not marital property. Courts have consistently considered
whether one spouse had postponed his or her own career and educational goals to
support and contribute to the career and educational goals of the other spouse. They also
acknowledge the injustice that occurs after a couple collectively works towards the
attainment of an advanced educational degree or career goal, the expectation of a higher
r.15]
standard of living in the future can be frustrated by the dissolution of a marriage.
9. Divorce § 11.70--Division of Property--Types of Property Interests Many states
have compared professional degrees to pension or retirement plans when establishing
what constitutes marital property. Pension and retirement plans entitle an owner to a
definite amount at a certain date, which an individual has a contractual right to receive.
Professional degrees rely on uncertain future events and provide only an expectation of
enhanced income. The value of a professional degree is speculative and dependent upon
the attributes and future choices of its possessor to be fairly valued.
10. Divorce § 11.40--Division of Property--Particular Cases The wife's medical degree
was not marital property subject to equitable distribution, as the husband had not been
compelled to delay or relinquish his own education or goals, he offered no evidence with
which to calculate the value of the degree, and he himself had an advanced degree. 16
V.I.C. § 109.
11. Marriage § 1.50--Generally--Definition and Nature The Virgin Islands has long
viewed marriage as a partnership or joint venture, whereby both parties collaborate for a
common purpose and contribute toward its success.
12. Divorce § 11.50--Division of Property--Power of Court The court has the authority
to divide the personal property in divorce action even after a divorce decree has been
issued. The trial court will be required to issue rulings on post-divorce ownership of
personal property such as cars, boats, electronics, jewelry, shares of stock, bonds and
monies deposited with financial institutions.
13. Divorce § 11.40--Division of Property--Particular Cases Although there was some
evidence that the husband in a divorce case withdrew $220,179.93 from his annuity
between 2011 and 2012, there was no evidence that he deliberately destroyed, concealed
or harmed the parties' property. The money was used to pay reasonable and necessary
expenses, including expenses associated with his children's care, the marital homestead,
businesses and living expenses; furthermore, the husband had been terminated from his
employment and used his investments to support his obligations and standard of living.
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14. Contempt § 5.10--Noncompliance With Court Order--Generally A party may be
held in civil contempt for failure to comply with a court order if (1) the order the contemnor
failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and
convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable
manner.
rli
COUNSEL: ANDREW L. CAPDEVILLE, Eso., Law Offices of Andrew Capdeville, St.
Thomas. USVI, Attorney for the Petitioner.
["16] JULIE GERMAN EVERT, ESQ., Law Offices of Julie German Evert, St. Thomas, USVI,
Attorney for the Respondent.
JUDGES: WATLINGTON, Judge of the Superior Court of the Virgin islands
OPINION BY: DEBRA S. WATLINGTON
OPINION
MEMORANDUM OPINION
(Airy 2010)
This matter came on for a trial on April 8, 2014, before the Honorable Debra S. Watlington,
Judge of the Superior Court of the Virgin Islands for the determination of the parties'
personal property and the marital homestead. Petitioner/Husband Mr. Julito A. Francis
appeared with counsel Andrew L. Capdeville, Esq., and Respondent/Wife Dr. Wright-
Francis appeared with counsel Julie German Evert, Esq., The Court heard sworn
testimony from Mr. Francis, Dr. Wright-Francis, Mrs. Joan Francis, and Erica Kellerhals,
Esq.
1 Julie German Even. Esq.. entered her notice of appearance in this matter on behalf of Dr. Wright Francis on February 12.
2014. Vincerd A Fuller, Esq.. was the attorney of record at the previous hearing.
PRELIMINARY MATTERS
Prior to commencing the trial, the Court addressed stipulations and outstanding motions of
["2]
both parties. The parties stipulated to the admission of Civil Complaint, ST-14-CV-
188, Balbo Corporation v. Julito Francis & Debra Francis, filed by Mr. Gerard Castor.
However, they do not stipulate or concede to the amount of monetary relief alleged in the
pleading.= The parties also stipulated that the marital homestead, IB-29 Estate Solberg, St.
Thomas. U.S. Virgin Islands, is valued at Seven Hundred Twenty Five Thousand Dollars
($725,000.00) subject to a mortgage of One Hundred Ten Thousand Dollars
($110,000.00). The parties further stipulated that the Court may make its determination of
["17] jointly owned marital household furniture based on evidence submitted from the
January 13, 2014 hearing.>
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2 Gerald Castor is the owner of Balbo Construction which performed construction work for the parties on the marital homestead
located at IB-29 Estate Solberg. In the civil action. Babo alleges that the parties are liable for outstanding payments amounting
to Three Hundred Ninety Six Thousand. Five Hundred Forty Four Dollars and Seventy Six Cents ($396.544.76).
3 This matter came before the Court for a final hearing on January 13. 2014. to resolve the outstanding issues regarding
distribution of personal property.
r31
Thereafter, the pending motions were addressed as follows: 1) Dr. Wright-Francis'
Motion to Exclude Gerard Castor's testimony was rendered moot in light of the parties'
stipulation; 2) the Court denied Dr. Wright-Francis' Motion to Exclude Mr. Francis and his
mother, Joan A. Francis, from testifying that she has an interest in the parties' marital
homestead; 3) the Court denied Mr. Francis' request to exclude the expert testimony and
report of Attorney Erika Kellerhals; 4) the Court denied Dr. Wright-Francis' Motion to
Exclude Mr. Francis from testifying that he is entitled to money from her earnings; and 5)
the Court granted Dr. Wright Francis' Motion to Exclude testimony concerning the value of
the parties' real and personal property located in the state of Georgia.
4 The Court's jurisdiction in this matter is limited to jointly owned personal property and the marital homestead.
UNDISPUTED FACTS
The parties, Mr. Julito Francis and Dr. Debra Wright-Francis, were married on August 17,
1991 in Opelika, Alabama. They have one minor child, Brooklyn J. Francis, born on March
6, 2000 and one adult daughter, Saryn J. Francis, born on January 27, 1993. The parties
both resided in Georgia until r4] Mr. Francis relocated in 2004 to St. Thomas; while Dr.
Wright-Francis and their daughters joined him in 2005. The parties resided at No. IB-29
Estate Solberg, St. Thomas, Virgin Islands during their marriage. A Decree of Divorce was
entered on July 25, 2012, dissolving the marriage.
Mr. Francis is the son of Joan Francis and brother to Diane A. Marsh. Joan Francis and
her daughter, Diane, acquired the property known as 1B-29 Estate Solberg from the Virgin
Islands Housing Finance Authority which required them to build on the land within a set
time period. After realizing that they would not be able to comply with program regulations,
they transferred ownership to Mr. Francis to begin construction to help secure financing to
build. Mr. Francis' mother and sister conveyed Parcel No. IB-29 Estate Solberg to Mr.
Francis and Joan Francis by Warranty Deed on April 12, 1995. Subsequently, on October
29, 1997, Joan Francis ("18] executed a Quitclaim Deed transferring her interest in
Parcel No. IB-29 Estate Solberg solely to Mr. Francis.5A dwelling structure was completed
in 1988 which Joan Francis moved into in 2000. At that point, Joan Francis began
r5]
contributing to the mortgage and the utility bill on a monthly basis until 2006. In
January 2014. Joan Francis resumed making contributions of six hundred dollars
($600.00) per month not including utilities.
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5 Ph. Francis filed copies of the 1995 Warranty Deed and 1997 Quitclaim Deed with his exhibit list on March 28. 2014.
No. IB-29 Estate Solberg, is a two (2) level structure and has three (3) units. The upper
level has three (3) bedrooms and two (2) bathrooms and the lower level is split into two (2)
separate one (1) bedroom, one (1) bathroom units. Dr. Wright-Francis continues to occupy
the main level of the marital homestead while Mr. Francis has remained in the one (1)
bedroom unit which he previously used as his office. Joan Francis, resides in the other one
(1) bedroom apartment on the lower level. Mr. Francis is responsible for the mortgage
payments for the property. Dr. Wright-Francis assisted with some maintenance of the
property.
In January 2014, Dr. Wright-Francis purchased an apartment at the Towers
Condominiums in Estate Contant which she uses for rental purposes.. The marital
homestead has structure problems and has deteriorated throughout the parties' marriage.'
Ni
Notwithstanding the purported poor condition of the home, Mr. Francis would like to
retain the marital homestead.
6 Mt Francis fled a copy of Dr. Wright Francis's Warranty Deed and Mortgage for Apartment No. F-15, The Towers
Condominiums located at No. 7A Southside Quarter. St. Thomas. Virgin Islands. with his Motion to the homestead.
7 IC Francis' exhibits 10(c), 10(d), 10(e). 10(f). 10(g). 10(k), and 10(m). which were admitted into evidence are photos
depicting the deteriorated state of the home and its structural problems.
The parties acquired multiple assets throughout their marriage in the form of real property
in the Virgin Islands and Georgia; individual retirement accounts; and other investment
accounts. Mr. Francis was employed with the U.S. Virgin Islands Government, first as the
Executive Director of the Public Finance Authority (PFA), then as the Chief Executive
Officer of the Virgin Islands Next Generation Network (VINGN). He was later terminated in
October of 2011 from VINGN where he received an annual salary of One Hundred
r.191
Seventy One Thousand Dollars ($171,000.00). He challenged his termination but
after an employment mediation, the decision was upheld. After being terminated, Mr.
rn
Francis, an investment manager, has focused on his wealth management business,
known as ACSB Capital Management LLC.
Dr. Wright-Francis, a medical OB-GYN, contracts medical services with the East End
Medical Clinic as an OB-GYN for an annual amount of Two Hundred Thousand Dollars
($200,000.00) and with Schneider Regional Medical Center for about Two Thousand Five
Hundred Dollars ($2,500.00) per-week for on-call services.
PROCEDURAL HISTORY
Julito Francis filed a verified Petition for Divorce on November 4, 2010. On February 3,
2011, Dr. Wright-Francis filed an answer to Mr. Francis' petition and on March 29, 2011
the Court referred the parties to mediation. The parties mediated but were not able to
reach an agreement. During the mediation period, the parties filed motions concerning
custody and wasting of marital assets. Consequently, the Court issued an Order on
December 22, 2011, prohibiting them from "disrupting" their children and "destroying,
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removing, concealing or otherwise harming or reducing the value of the property of one or
both of the parties." On March 26, 2012, the Court held a final pretrial conference to set
deadlines for trial. The Court also maintained the parties' visitation agreement..
t•8j
8 See. Paragraph (2) (b) of this Court's Order in this matter dated December 22. 2011.
9 Pk. Francis informed the Court. in his Motion to Restrain Respondent From Denying Petitioner Access to Former Marital
Residence that the parties negotiated a visitation agreement in September of 2011. whereby both parties have custody of their
minor daughter, Brooklyn. for fifteen (15) days of each month. Such agreement was not contested by Dr. Wright Francis.
On July 16, 2012, Dr. Wright-Francis filed an Emergency Motion for Issuance of Show
Cause Order, alleging that Mr. Francis violated the Court's December 22, 2011 Order by
withdrawing Two Hundred Twenty Thousand, One Hundred Seventy Nine Dollars and
Ninety Three Cents ($220.179.93) from his Fidelity Rollover IRA account. While the Court
initially granted Dr. Wright-Francis' motion on July 17, 2012, that Order was later vacated
on July 25, 2012. The Court reasoned that it was not able to make a determination since
discovery had not been completed. ("201 Instead, the Court instructed the parties to
retain a Certified Personal Accountant (CPA) to appraise all of their jointly owned
properties and to recommend how the marital assets should be divided. The parties never
9]
complied with the order to retain an accountant...
10 See Courts July 25. 2012 Order.
On July 25, 2012, the Court issued a Divorce Decree to the parties and reserved
determination on issues of custody, alimony, personal and real property for a later date.
Meanwhile, the parties continued to live in separate sections of the marital homestead.
During a June 17, 2013 hearing, the parties informed the Court that they were able to
resolve the issues of custody and visitation amicably, consistent with their earlier
agreement. On July 12, 2013 the parties were referred back to mediation. After the second
mediation session, the mediator reported that the parties had reached a total impasse.
However, in a status conference held on September 10, 2013, the parties advised the
Court that they had reached an agreement and through counsel, the terms were read onto
the record. Each party confirmed that the terms were accurate and they agreed to them.
The Court acknowledged the terms and ordered counsel for both parties to reduce the
agreement to writing and submit it with their client's respective signatures. Instead each
party submitted separate draft settlements that differed slightly from the oral agreement
articulated in Court. As a ["10] result, the Court entered an Order on November 4, 2013
that incorporated the negotiated terms which the parties stipulated to on the record in the
September 10, 2013 hearing. On November 18, 2013, this Court entered an Order which
granted a Motion to Amend filed by Dr. Wright-Francis. The Order amended the previous
November 4, 2013 Order which instructed Mr. Francis to pay his settlement amount by
certified check or bank draft instead of transferring the sum from his retirement account
directly to Dr. Wright-Francis' account or to her personally by electronic means. Mr.
Francis objected to Dr. Wright-Francis' method of payment request, filed a timely
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opposition on November 20, 2013, and requested the Court to reconsider its Amended
Order entered on November 18, 2013.11
11 On November 18.2013 the Court entered an Order on Dr. Wrigltt•Francis's November 6. 2014 Motion to Amend, two (2)
days before the fourteen (14) day statutory period for Mr. Francis to respond ended. pursuant to Rule 15(b)(3) of the Federal
Rules of CMI Procedure. W. Francis Ned his opposition to the Motion to Amend on November 20. 2013.
["21] Having reviewed the parties conflicting requests, the Court vacated its November
rill
18, 2013 Order because it found that the parties' settlement agreement lacked
mutual assent since the parties could not agree on the method of payment. The parties
also claimed that they would incur injury if payment was not made as each requested. The
Court determined that the parties negotiated and accepted the agreement based on two
(2) different interpretations of its terms. As a result, this matter was scheduled for trial.
Subsequently, Mr. Francis moved the Court on February 12, 2014 for permission to return
to the marital homestead since his existing apartment poorly accommodated him and his
daughter for their monthly visitation and Dr. Wright-Francis had recently purchased
property on St. Thomas.
THE PARTIES' ARGUMENTS
Mr. Francis advised the Court that he is solely responsible for the mortgage on 16-29
Estate Solberg.* Mr. Francis also informed the Court that he paid all of the household
expenses without any contribution from Dr. Wright-Francis and continues to pay those
expenses. He also claims that he has made payments on the balance owed to Balbo for
construction work on IB-29 Estate Solberg.
12 The mortgage for the Solberg property stipulates that only Mr. Francis signed the promissory note despite both parties being
listed on the docunent (921 as "Borrower.-
Mr. Francis seeks a portion of Dr. Wright-Francis' current and future earnings since he
claims that he supported her financially while she completed medical school in 1992. As a
result, Mr. Francis asserts that Dr. Wright-Francis' medical license is marital property
which is divisible like the parties' other assets.
Additionally, Mr. Francis contends that Dr. Wright-Francis' net worth is Two Million One
Hundred Three Thousand, Eight Hundred Fifty Seven Dollars and Twenty Four Cents
($2,103,857.24). He claims that his net worth is One Million One Hundred Nine Thousand,
Nine Hundred Twelve Dollars and Eighty Two Cents ($1,109,912.82). Mr. Francis seeks
Four Hundred Ninety Six Thousand Dollars ($496,000.00), to make his [**22] net worth
equal to Dr. Wright-Francis.* Mr. Francis also expressed a willingness to rescind his
request, if Dr. Wright-Francis relinquishes her interest in the marital homestead.
1311 the Court were to add both of the parties purported net worth, divide them in hall. and then subtract Mr. Francis individual
net worth it would amount to 5496000.00.
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Mr. Francis denied accusations of depleting any marital property. Instead, Mr. Francis
contends that he withdrew r13] money from his retirement account to pay off expenses,
including mortgage payments, other property expenses and travel expenses back and
forth to Washington D.C. where he visits with the parties' older daughter and cultivates
business for his company, ACSB Capital Management LLC."
14 The parties' older daughter. Saryn .1. Francis. born on January 27. 1993. is an undergraduate student at Howard University
located in Washington. D.C.
The Court also heard sworn expert testimony from Erika Kellerhals, Esq., (hereafter
Kellerhals) on behalf of Dr. Wright-Francis. Kellerhals testified that she analyzed Mr.
Francis' financial records. She advised the Court that she submitted her findings in two (2)
reports: the first one analyzed Mr. Francis' bank accounts, investments, credit cards and
retirement account and the second report assessed the financial reports Mr. Francis
submitted to the Court as exhibits for trial.is Kellerhals testified that the records she
received from Mr. Francis were incomplete and that it appears that Mr. Francis was
commingling funds since she was not able to distinguish between his personal and
business expenditures. Kellerhals also refuted Mr. Francis' claim that he has been [9 4]
cultivating business in Washington, D.C. since his records do not show evidence that he
has any clients outside the territory of the U.S. Virgin Islands. With respect to the money
owed to Balbo, Kellerhals testified that financial records show that Mr. Francis has paid
Balbo about Fifteen Thousand Dollars ($15,000.00) and Dr. Wright-Francis has paid
approximately Thirty Thousand Dollars ($30,000.00).
15 Kellerhals' Curriculum Vitae reflects her education and expertise in legal tax related assessments and financial analyses.
Kellerhals claim that although in deposition Mr. Francis submitted incomplete bank account
information to 2011-2012,is she found that Mr. Francis spent approximately One Hundred
Seventeen Thousand Five ("23] Dollars and One Cent ($117,005.01).i, For the year
2012, Mr. Francis submitted his 1O4O tax form, and again, Kellerhals found that Mr.
Francis spent about One Hundred Seventy Nine Thousand Twenty One Dollars
($179,021.00).is
16 Mr. Francis submitted Fidelity IRA and 401K statements for December 2011-February 2012. April 2012-May 2012: Charles
Schwab IRA statemeNs for November 2012-December 2012: an AmEx credit card spending report for the year of 2011: and
['15]
Marriott Credit Card statements for December 24. 2011-December 23, 2012. Mr. Francis also submitted Texas Credit
Union statements for December 2012,lanuary 2013 and Banco Popular statements for March-May 2013. which are outside the
scope of investigation.
17 See, Respondent's Exhibit 3A
18 See. Respondent's Exhibit 3A
Kellerhals concluded that Mr. Francis' spending habits increased drastically since the
parties divorced on July 25, 2012, in violation of the Court's December 22, 2011 Order.
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Kellerhals opined that: 1) retirement funds are marital assets; 2) Mr. Francis' wasted
marital assets by withdrawing money from his annuity early to cover his excessive
spending in the amount of Two Hundred Twenty Thousand One Hundred Seventy Nine
Dollars and Ninety Three Cents ($220,179.93); and 3) that Dr. Wright-Francis is entitled
one half of the "wasted" amount of about One Hundred Ten Thousand and Ninety Dollars
($110,090.00).
Dr. Wright-Francis testified that Mr. Francis is not entitled to earnings resulting from her
medical degree because the parties, collectively, paid off student loans by selling stocks
that were jointly purchased. Dr. Wright-Francis also testified that she obtained her degree
in 1992, just a year after [16] the parties were married. Dr. Wright-Francis further
contends that she did not work for one (1) year in order to care for the parties' children in
the early years. She contends that except for approximately two (2) to four (4) years, the
parties' income were comparable. She confirmed her work contracts with the East End
Medical Clinic and the Schneider Regional Medical Center.
Dr. Wright-Francis acknowledged the purchase of a unit at the Towers Condominiums in
Estate Contant on January 17, 2014, for which she currently collects a monthly rent. She
confirmed that she continues to reside at IB-29 Estate Solberg with the parties' minor
daughter.
Dr. Wright-Francis informed the Court that she is seeking half of the value of the parties'
marital homestead located at IB-29 Estate Solberg and half of the value of what Mr.
Francis "wasted." She contends that Joan Francis does not have any ownership interest in
the Solberg property [**24] and that the homestead should be sold if Mr. Francis is not
able to buy her out.
ANALYSIS
[1] [HN1] In an action for divorce, this Court has the authority to equitably divide joint
personal property and real property, limited to the marital homestead as defined in Title 33
V.I.C. § 2305(d). Bradford v. Cramer, 54 V.I. 669, 676 (V.I. 2011). Real property [*17]
owned by the couple, other than the marital homestead, is divided by way of a civil
partition action. Fuentes v. Fuentes, 38 V.I. 29, 1997 WL 889532 (Terr. V.I. 1997). When
determining the equity of the distribution, the Court also has broad discretion to consider
the case's most salient facts. Charles v. Charles, 788 F.2d 960, 965 (3rd Cir. 1986). The
Supreme Court of the Virgin Islands further refined the Court's discretion to divide property
by eliminating marital fault as a factor in dividing the homestead. Garcia v. Garcia, 59 V.I.
758 (V.I. 2013). "The doctrine of equitable distribution is applied to effectuate a fair and
just division of the property between the parties. As its name suggests, equitable
distribution does not necessarily mean 'equal,' only 'equitable.' " Fuentes, 38 V.I. at
40. 1997 WL 889532, at *5 (emphasis added).
A Manta, Homestead
[2] [HN2] Pursuant to Title 33 V.I.C. § 2305(a), a homestead is defined as "the abode
including land and buildings, owned by, and actually occupied by, a person, or by
members of his family free of rental charges." The Court in Garcia quoted Harvey v.
Christopher, to explain that although the Virgin Islands Code does not expressly define a
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'marital homestead,' both the United States Court of Appeals for the Third Circuit and the
Appellate Division of the District Court interpreted Title 33 V.I.C. §§ 2305(a), (c) to hold
[.18]
that a "marital homestead' is any 'homestead' in which a husband and wife both
reside during the marriage and that is owned by one or both of the spouses." Garcia, 59
V.I. 758 (V.I. 2013) quoting, Harvey v. Christopher, 55 V.I. 565, 572 (V.I. 2011).
Pursuant to the parties' stipulation, IB-29 Estate Solberg is valued at Seven Hundred
Twenty Five Thousand Dollars ($725,000.00) subject to a One Hundred Ten Thousand
Dollars ($110,000.00) mortgage. Although the parties dispute the amount owed to Balbo,
they acknowledge that ("25] Balbo Construction is owed money for work it has done on
the homestead."
19 See Civil Complaint. Batbo v. Junto Francis 8 Debra Francis. ST-14-CV-188.
Testimony revealed that Dr. Wright-Francis assumed responsibility for the children's
school tuition and cost of other activities during the course of their marriage. Mr. Francis
satisfied almost all expenses related to their home including the mortgage property and
home insurance payments. Since the parties' divorce, the parties have shared equally their
children's expenses and Mr. Francis has continued to pay all real property expenses.
Here, the home located at IB-29 Estate Solberg, St. Thomas appears to satisfy the
requirements outlined in Title 33 V.I.C. § 2305(a) since Mr. Francis gained ownership
rights when: 1) his mother and sister conveyed the property to him and 2) [*19] the parties
resided in the home from 2005 until they terminated their marriage in 2012. However, the
Supreme Court, through Garcia, required that further examination is needed when a
purported marital homestead is comprised of multiple units like the Solberg property.
In Garcia, the parties resided in a two level structure that was partitioned of into four (4)
separate independent apartments. The wife argued that the marital homestead constituted
all four (4) apartments and consequently, she was entitled to an equitable portion of the
homestead. The husband opined that all of the apartments should not count towards the
homestead since "(1) it had a dual nature, as portions of the building were rented to
tenants, and (2) although Felipe and Edna resided there at some points during their
marriage, there were large spans of time during which the parties did not occupy it
together." 59 V.I. 758 (V.I. 2013). Ultimately, the Garcia Court remanded the matter back
to the Superior Court for further consideration without determining which units comprised
the marital abode.
Here, the Solberg property is apportioned into three (3) units. The parties resided in the
larger unit with their daughters for approximately seven [*2O] (7) years while Mr. Francis'
mother lived in a smaller unit. The third unit was used as a home office by Mr. Francis,
until he started to use it as his living quarters after the parties divorced. Unlike Garcia, the
parties did not use their other units as rental property to produce income. Mr. Francis
asserted that Joan Francis contributed to her household [" 26] expenses for a portion of
the time she has lived there. It is also important to note that Mr. Francis' mother resided on
the property first and has been the only other resident.
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[3] The Court has considered that the parties resided in the Solberg home from 2005-2012
for approximately seven (7) of their twenty one (21) years of marriage with their children.
Mr. Francis' mother has occupied an attached apartment on the same property since 2000.
They have all contributed in various degrees to the subject property. Both parties are
clearly capable of providing for themselves and their children, as they are both
accomplished professionals and have already agreed to share equally in the costs of
raising their children. Dr. Wright-Francis obviously has the capacity and means to secure
alternative housing; and has neither demonstrated a need [*21] or desire to remain in the
marital homestead.
This Court cannot disregard the fact that neither party purchased the real property upon
which the marital homestead was built. Much consideration is given to the fact that Mr.
Francis acquired the property from his mother to help her construct a home for her to live.
While evidence shows that the parties together were able to finance the construction, they
benefitted by living on the property with their children for seven (7) years of their twenty-
one (21) years of marriage. Joan Francis has lived in an adjoining apartment for
approximately fourteen (14) years. Thus, only the main residential unit (inclusive of what
was the home office and children's area) that the parties occupied during their marriage
constitute the marital homestead and not the entire property known as IB-29 Estate
Solberg.
In view of the circumstances surrounding the acquisition and construction of IB-29 Solberg,
maintenance and occupancy of said property, the Court finds that based on a balancing of
equities, Mr. Francis should retain possession of the marital homestead. Moreover, having
considered the stipulated assessed value of the real property, and the debts associated
['22] with the property, and given serious consideration to the equities involved under the
particular facts herein, the Court has determined that Dr. Wright-Francis has a thirty-five
percent (35%) interest in the marital homestead which constitutes approximately seventy
percent (70%) of the developed property. As a result Seventy Six Thousand, Six Hundred
Fifty Dollars ($76,650.00) plus $30,000.00 reimbursement for moneys expended for
constructions costs represents a fair award to ["27] Dr. Wright-Francis for her
contributions and interest in the marital homestead. Thus, Mr. Francis will be required to
pay Dr. Wright Francis a total of One Hundred Six Thousand, Six Hundred Fifty Dollars
($106,650.00).
8. Personal Property
[4] [HN3] The Court may distribute personal property in accordance with Title 16 V.I.C. §
109 (4). However, the statute does not define marital property. "Whether an asset is
marital property or separate property for purposes of distribution of the marital estate, is a
matter reserved to the sound discretion of the trial court." See, Feddersen v. Feddersen,
68 F. Supp. 2d 585, 41 V.I. 230 (D.V.I. 1999). See also, MacAleer v. MacAleer, 1999 PA
Super 35, 725 A.2d 829, 831 (1999). Once these distinctions have been made, the trial
judge has broad equitable powers in disposing of marital property. Fuentes, 38 V.I. at 35,
1997 WL 889532, at *5.
[5] [HN4]Although not specifically defined, marital property ['23] has been construed to
encompass any property which the couple acquired during the marriage and which is
subject to equitable distribution upon divorce. See Fuentes v. Fuentes, 247 F.Supp.2d 714
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(2003). See, Felix v. Felix, 1998 WL 458499, *2 (D.V.I. 1998). Compare, 16 V.I.C. 68
(defining what constitutes 'separate property of a spouse, not subject to distribution).
I. Equ,VOM ClistribViten or Reneemom Accounts
[6] [HN5]Considering the tremendous statutory examples and case law from other
jurisdictions holding pension funds as marital property, the Virgin Islands has determined
that a pension fund is also marital personal property, subject to claim by the other spouse
upon divorce. Fuentes, 38 V.I. at 40, 1997 WL 889532, at *8. The Fuentes Court goes on
to rationalize its decision by quoting the Rhode Island Supreme Court in Stevenson v.
Stevenson, 511 A.2d 961, 965 (R.I. 1986):
To the extent earned during the marriage, the [pension) benefits represent compensation for marital effort and are
substitutes for current earrings which would have increased .. the marital standard of living or would have been
converted into other assets divisible at dissolution. Subjecting the benefits to division is just, because in most cases the
retirement benefits constdute the most valuable asset the couple has acquired and they both have relied upon their
pension payments for ["7 8] security in their older years. [124] Family Law and Practice. § 37.07111 at 37-81 (1985).
Fuentes v. Fuentes, 38 V.I. 29, 1997 WL 889532 (Terr. V.I. 1997). The evidence shows
that Mr. Francis has approximately Five Hundred Thousand Dollars ($500,000.00) in his
retirement account. While, Dr. Wright-Francis has an amount that exceeds Five Hundred
Thousand Dollars ($500,000.00), the exact amount is unknown.
According to the Court in Fuentes, both parties are entitled to an equitable share of the
other's retirement account. The Fuentes Court further explains that there are two (2)
different methods used to determine the percentage which spouses are entitled. The first
method presumes a present value on the retirement plan based on the expected lifespan
of the employee-spouse. Weir v. Weir, 173 N.J. Super. 130, 413 A.2d 638 (1980). This
method requires the Court to determine values contingent on life expectancy and
employee-spouse's share of the retirement pay. Fuentes, 38 V.I. at 41, 1997 WL 889532,
at *7. The second method calculates the percentage that the non-employee is entitled to,
based on length of employment and marriage. They receive benefits when they become
available under the plan. Id. Both methods require basic knowledge of the retirement plans
that includes, but are not limited to the following information: 1) present value; 2) account
history; p25] 3) retirement plan regulations; and 4) the distribution schedule.
With regard to the retirement accounts, the parties have simply failed to submit sufficient
information for the Court to make a determination. Mr. Francis' submission only
demonstrates the balance of his Fidelity IRA account when the parties dissolved their
marriage in 2012. The Court has no reliable evidence from Dr. Wright-Francis regarding
her retirement fund other than her vague testimony. Neither party has made sufficient
information available to this Court, to justify the division of their respective individual
accounts.
[7] On July 25, 2012, the Court refused to make a determination on Dr. Wright-Francis'
show cause motion because it lacked sufficient evidence and ordered the parties to
commission a CPA supra. The parties failed to comply. As a result, the record is still void
of evidence of a CPA analysis or recommendation to aid the Court. Kellerhals reports and
testimony are not helpful in this regard since it was designed for the sole purpose of
demonstrating waste of assets by Mr. Francis. Notwithstanding, [**29] it appears that the
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parties have approximately the same amount in their funds, or close thereto. Thus, a
division is [*26] unnecessary and each party is entitled to retain their existing interest in
their own accounts.
a EpvnaNW Disenbution or the Medical Dogm
[8] Mr. Francis requests equitable distribution of Dr. Wright-Francis' medical degree, which
was acquired after one (1) year of marriage. The U.S. Virgin Islands has not previously
decided whether educational or professional degrees constitute marital property." [HN6]
Most states hold that an educational degree is not marital property. Courts have
consistently considered whether one spouse had postponed his or her own career and
educational goals to support and contribute to the career and educational goals of the
other spouse. See, Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527, 531-32 (1982); In re
the marriage of Sally K. Olar, 747 P.2d 676, 678 (1987). They also acknowledge the
injustice that occurs after "a couple collectively works towards the attainment of an
advanced educational degree or career goal," the expectation of a higher standard of living
in the future can be frustrated by the dissolution of a marriage. In re the marriage of Sally
K. Olar, 747 P.2d 676, 678 (1987). They also acknowledge that injustice that occurs after
"a couple collectively works towards the attainment of an advanced educational degree or
career goal," the expectation of a higher standard of living in the [*27] future by the
dissolution of marriage. In re the marriage of Sally K. Olar, 747 P2d. 676, 678 (1987).
20 For the purpose of the Order, education and professional degrees will be used interchangeably.
[9] [HN7] Many states have compared professional degrees to pension or retirement
plans when establishing what constitutes marital property. Pension and retirement plans
entitle an owner to a definite amount at a certain date, which an individual has a
contractual right to receive. See, Fuentes, 38 V.I. 29, 1997 WL 889532, at *5.5 See also,
Kikkert v. Kikkert, 88 N.J. 4, 438 A.2d 317 (1981). Professional degrees rely on uncertain
future events and provide only an expectation of enhanced income. The value of a
professional degree is speculative and dependent upon the attributes and future choices of
its possessor to be fairly valued. See, In re the marriage of Sally K. Olar, 747 P.2d 676,
679-80 (1987). See also, Archer v. Archer, 303 Md. 347, 493 A.2d 1074, 1079 ["30]
(1985), citing Deering v. Deering, 292 Md. 115, 437 A2d 883 (1981). See also, Mahoney v.
Mahoney, 91 N.J. 488, 453 A.2d 527, 531-32 (1982).
New York is the only jurisdiction so far to rule professional degrees are marital property
subject to equitable distribution. See, O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d
743, 489 N.E.2d 712 (1985). New York legislation provides that a court consider the efforts
one spouse has made to the other spouse's career. See, N.Y. Dom. REL. LAW § 236(6)(1),
(5). In OBfien v. O'Brien, the Defendant-wife sought equitable distribution of the
Plaintiff/Husband's license to practice medicine. The Plaintiff commenced the action for
[*
divorce two (2) months 28] after obtaining such license. The Plaintiff began his
postgraduate classes after the parties were married. For the majority of the parties nine (9)
years of marriage, he was working towards a career in medicine. Meanwhile, the
Defendant maintained their household, relinquished her opportunity to further her career,
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and provided financially for the parties. The Defendant provided expert testimony
evaluating the present value of the Plaintiff's medical license. O'Brien v. O'Brien, 66 N.Y.2d
576, 498 N.Y.S.2d 743, 489 N.E.2d 712 (1985).
[10] Here, Dr. Wright-Francis acquired her medical degree in 1992, she began working
towards the degree years before the parties were married. There is no evidence that Mr.
Francis was unjustly compelled to delay or relinquish his education or career goals in order
for Dr. Wright-Francis to pursue her goals. Mr. Francis did not provide testimony on the
amount in which he contributed to Dr. Wright-Francis' education. Furthermore, Mr. Francis
does not offer personal or expert testimony on the potential or actual worth of Dr. Wright-
Francis' degree. Two (2) decades have passed since Dr. Wright-Francis received her
medical degree. Mr. Francis failed to provide the Court any substantial or credible
evidence to calculate a value of Dr. [*29] Wright-Francis' medical degree.
[11] [HN8] The Virgin Islands has long viewed "marriage as a partnership or joint venture,
whereby both parties collaborate for a common purpose and contribute toward its
success." See, Fuentes v. Fuentes, 247 F. Supp. 2d 714 (2003); Felix v. Felix, 1998 WL
458499, *2 (D.V.I. 1998).
It is important to note that Mr. Francis also received a higher education degree
immediately before the marriage. Mr. Francis acquired his Master's in Business
Administration in 1990 and is admittedly a well-qualified astute financial investment
manager. The parties testified that ("31] they supported each other with the help of their
families in the early years of their relationship and marriage. Both degrees provided an
expectancy of a better life, but this was not guaranteed by contract or other form of surety.
Even so, both degrees launched successful and profitable careers for the parties. Both
parties worked throughout the duration of the marriage and contributed financially to the
marriage.
Accordingly, Mr. Francis' evidence and testimony are insufficient to demonstrate that Dr.
Wright-Francis' medical degree is marital property. In this instance, Dr. Wright-Francis'
medical degree is her separate property and is not subject to equitable distribution.
I Equitable DismburiOn ratli OlHouselvOW Furniture end other PrOpftly L0oate0 et 18.29 Worn Solberg
[12] [HN9] The Court also has the authority to divide the personal property in divorce
action even after a divorce decree has been issued. In Garcia. the Supreme Court explains
that "the Superior Court will be required to issue rulings on post-divorce ownership of
personal property ... such as cars, boats, electronics, jewelry, shares of stock, bonds and
monies deposited with financial institutions ... ." Garcia, 59 V.I. 758.
This Court is guided by Mortis v. Morris, 20 V.I. 249, 1984 WL 998145 (Terr. V.I. 1984),
and in the absence of provable ownership, the Court considers the personal property to be
jointly owned in equal shares. With respect to the disposition of the household furniture,
the evidence satisfies the Court that they are jointly owned by the parties and shall be
distributed as set forth in Appendix A of this Opinion which is incorporated herein.
C Doom motion on Waste of Marital ASSOIS
In the Order entered by the Court on December 23, 2011, the parties were ordered to
refrain from "destroying, removing, concealing or otherwise harming or reducing the value
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of the property of one or both of the parties.". In addition, the parties were authorized to
p31]
engage in acts reasonable and necessary to the conduct of the parties' usual
business and occupation; make expenditures and incur indebtedness for reasonable
attorney's fees; and make expenditures and incur indebtedness for ['* 32] reasonable and
necessary living expenses for food, clothing, shelter, transportation, and medical care.•
21 See Paragraph (2) (b) of Order dated December 23. 2011
22 id at Paragraph 5.
Dr. Wright-Francis argues that Mr. Francis excessively spent and wasted assets. Dr.
Wright-Francis submitted reports and sworn testimony analyzing Mr. Francis' income and
expenses..
23 See. Respondent's Exhibits 3 and 3A
[13] Although there is some evidence that Mr. Francis withdrew Two Hundred Twenty
Thousand One Hundred Seventy Nine Dollars and Ninety Three Cents ($220,179.93)
between 2011 and 2012, there is no evidence Mr. Francis deliberately destroyed,
concealed or harmed the parties property. The money Mr. Francis withdrew from his
annuity was used to pay expenses, including expenses associated with his children's care,
the marital homestead, businesses and living expenses, they are reasonable and
necessary.. The Court also considers the fact that Mr. Francis was terminated from his
employment with VINGN and used his investments [' 32] to support his obligations and
standard of living.
24 Petitioners bank statements submitted at Deposition show payment to his attorney and reasonable and necessary business
and living expenses.
[14] Moreover, the Supreme Court in Walters v. Walters explains that there must be
sufficient evidence that a party intentionally disobeyed a Court order to be held in
contempt. To clarify its position, The Walters Court quotes the Court of the Second Circuit
of Appeals: [FIN1 0] "A party may be held in civil contempt for failure to comply with a court
order if '(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the
proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently
attempted to comply in a reasonable manner.' " Id. at 352 (quoting Paramedics
Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655
(2d Cir. 2004)).
Accordingly, it is not unreasonable to expect Mr. Francis to use his available resources to
finance his daily and regular obligations. Dr. Wright-Francis fails to provide clear and
convincing evidence of intent to harm marital assets. For that reason, the Court cannot find
that Mr. Francis excessively spent and wasted marital assets in 2011 and 2012, in violation
of the Court Order entered on December 23, 2011.
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I-33] CONCLUSION
[*33]
Based on all of the above the Court concludes that both parties individually possess
sufficient financial and professional resources to continue to support themselves and their
children with a standard of living equivalent to that enjoyed during the marriage. Thus, the
post-divorce distribution of the marital homestead and personal property are decided in
accordance with this Memorandum Opinion and the accompanying Order of even date.
ORDERED that a copy of this Order be directed to Andrew L. Capdeville, Esq. and Julie
German Evert, Esq.
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