Lakeview Loan Servicing, LLC v. Singh

2021 VI SUPER 79

LAKEVIEW LOAN SERVICING, LLC, PLAINTIFF, v. KRISHNA R. SINGH, ITZAMAR SINGH,AND AURORA LOAN SERVICES, DEFENDANTS.

Civil No. SX-16-CV-541

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

July 28, 2021

ACTION FOR DEBT, FORECLOSURE OF REAL PROPERTY MORTGAGE, AND QUIET TITLE

Appearances:

A.J. Stone III, Esq.

BoltNagi PC

St. Thomas, U.S. Virgin Islands

For Plaintiff

MEMORANDUM OPINION

WILLOCKS, Presiding Judge

¶ 1 THIS MATTER came before the Court on Plaintiff Lakeview Loan Servicing, LLC's (hereinafter "Plaintiff") motion for entry of final judgment and order of foreclosure, filed on October 30, 2020.

BACKGROUND

¶ 2 On September 1, 2016, Plaintiff file a verified complaint against Defendant Krishna R. Singh (hereinafter "Krishna"), Defendant Itzamar Singh (hereinafter "Itzamar"), and Defendant Aurora Loan Services (hereinafter "ALS" and together with Defendant Krishna and Defendant Itzamar, "Defendants") in connection with a promissory note secured by a mortgage on the following property: Plot No. 66 of Estate Hope and Carton Hill, East End Quarter "B", St. Croix, U.S. Virgin Islands (hereinafter "Property"). According to the verified complaint, (i) on July 11, 2014, Krishna executed and delivered to Flagstar Bank, FSB a promissory note promising to pay the principal amount of $320,585.00, together with interest at the rate of 3.990% per annum (hereinafter "Note"), and the Note was subsequently conveyed to Plaintiff (Compl. ¶ 8); (ii) to secure the payment of the Note, Krishna and Itzamar granted to Flagstar Bank, FSB and Mortgage Electronic Registration Systems, Inc. (hereinafter "MERS"), as nominee for Flagstar Bank, FSB and its successors and assigns, a first priority mortgage dated July 11, 2014 (hereinafter "Mortgage"), which was duly recorded (Compl. ¶ 11); (iii) the Mortgage provides that Krishna and Itzamar shall pay the amounts due under the Note (Compl. ¶ 12); (iv) on or about June 8, 2016, MERS, for itself and as nominee for Flagstar Bank, FSB, assigned its entire interest in the Property to Plaintiff (hereinafter "MERS Assignment") (Compl. ¶ 13); (v) ALS is a lienholder and currently has a lien recorded against the Property (hereinafter "Aurora Lien") (Compl. ¶ 14); (vi) as of the date of the verified complaint, ALS has not recorded a release of the Aurora Lien despite the fact that the Aurora Lien was fully satisfied, and the Aurora Lien remains "a cloud on title that threatens the priority of [Plaintiff's] first priority lien" (Id.); (vii) on February 1, 2016, Krishna defaulted under the terms and conditions of the Note and the Mortgage (Compl. ¶¶ 17-18); (viii) Plaintiff sent a notice of default to Krishna, but as of the date of the verified complaint, the default has not been cured and Krishna remains in default under the Note and the Mortgage (Compl. ¶¶ 19-20); (ix) pursuant to the terms of the Note and the Mortgage, Plaintiff elected that the whole principal sum with all unpaid accrued interest immediately due and payable (Compl. ¶ 21); (x) as of the date of the verified complaint, the unpaid principal, accrued interest, and other amounts due remain outstanding (Compl. ¶ 22); (xi) under the terms of the Note and the Mortgage, Plaintiff is entitled to be reimbursed for any insurance premiums, taxes, or other charges that it paid with respect to the Property and for reasonable attorney's fees and expenses it incurred to enforce the Note and the Mortgage (Compl. ¶¶ 24-25.) Plaintiff alleged the following causes of action: Count I-debt(against Krishna and Itzamar), Count II-foreclosure of real property mortgage (against Krishna and Itzamar), and Count III-quiet title (against ALS).

¶ 3 Defendants were thereafter served and when they failed to answer or otherwise defend, default was entered against them on November 23, 2016. On June 6, 2017, Plaintiff filed a motion for default judgment.¹ On April 3, 2019, the Court entered an order whereby the Court granted Plaintiff's motion for default judgment and scheduled a hearing to determine the amount due under the Note and the Mortgage. The Court explained:

...the Court has not been updated on the amounts due since June 2017 when the Motion was initially filed. As such, the current amount due under the note and mortgage, and for other costs and fees is unclear and it is appropriate to allow the Plaintiff to present its evidence on this issue at a damages hearing before the final judgment is issued.

(April 3, 2020 Order.)

¶ 4 Subsequently, the damages hearing was held on August 1, 2019.² On April 15, 2020, Plaintiff file a motion for entry of final judgment and order of foreclosure. On July 9, 2020, Plaintiff filed another motion for entry of final judgment and order of foreclosure. On October 30, 2020, Plaintiff filed this instant motion for entry of final judgment and order of foreclosure. A copy of updated declaration of counsel and support of award of costs and attorney's fees (hereinafter "Updated Declaration") and a copy of the proposed final judgment and order of foreclosure were attached to Plaintiff's October 30, 2020 motion.

DISCUSSION

¶ 5 In Plaintiff's October 30, 2020 motion, Plaintiff advised the Court that at the damages hearing, "the Court heard testimony and took evidence from Tara Cane, a Banking Officer for M&T Bank, which serves attorney-in-fact and servicer for Plaintiff" and "Cane's testimony established that as of September 1, 2019, there is due and owing to Plaintiff from Defendant Krishna R. Singh the principal sum of $312,505.91; plus accrued interest from January 1, 2016 to September 1, 2019 in the amount of $45,719.52 (with interest accruing at the rate of $1,039.08 per month); plus escrow advances in the amount of $34,925.72; plus pro-rata mortgage insurance premiums in the amount of $958.68; plus accumulated late charges in the amount of $407.52; plus inspections and other property preservation fees and charges in the amount of $28.00; plus arecoverable balance in the amount of $14,359.00; for a total amount due of $408,904.35." (Motion, pp. 1-2)

I. Plaintiff's Motions for Entry of Final Judgment and Order of Foreclosure, Filed on April 15, 2020 and July 9, 2020

¶ 6 Here, the Court finds that Plaintiff implicitly withdrew its prior motions for entry of final judgment and order of foreclosure, filed on April 15, 2020 and July 9, 2020, when it filed a subsequent motion for entry of final judgment and order of foreclosure on October 30, 2020. See Magras v. National Industrial Services, et al., 2021 V.U. Super 50U, ¶ 8; see also, In re Refinery Dust Claims, 72 V.I. 256, 290 (Super. Ct. Dec. 13, 2019) (citing Mitchell v. Gen. Eng'g Corp., 67 V.I. 271, 278 (Super. Ct. Feb. 23, 2017) ("a motion can also be deemed withdrawn based on certain actions or inactions of the party who filed the motion"). As such, Plaintiff's prior motions for entry of final judgment and order of foreclosure, filed on April 15, 2020 and July 9, 2020, will be deemed withdrawn.

II. Plaintiff's Motion for Entry of Final Judgment and Order of Foreclosure, Filed on October 30, 2020

¶ 7 As noted above, the Court had previously granted Plaintiff's motion for default judgment but the Court did not enter judgment at the time because "the current amount due under the note and mortgage, and for other costs and fees is unclear." (April 3, 2020 Order.) As such, the only issue before the Court is the amount due under the Note and the Mortgage. Based on the Plaintiff's submissions, the Court finds that, as of September 1, 2019, Krishna and Itzamar owe Plaintiff in the total amount of $408,904.35,³ with interest accruing at the rate of $1,039.08 per month.

¶ 8 The Court will grant Plaintiff's motion for entry of final judgment and order of foreclosure, filed on October 30, 2020, and enter final judgment as follows: (i) as to Plaintiff's debt claim, Plaintiff will be awarded a judgment in its favor and against Krishna and Itzamar as follows: principal sum in the amount of $312,505.91, plus accrued interest from January 1, 2016 to September 1, 2019 in the amount of $45,719.52, plus escrow advances in the amount of $34,925.72, plus pro-rata mortgage insurance premiums in the amount of $958.68, plus accumulated late charges in the amount of $407.52, plus inspections and other property preservation fees and charges in the amount of $28.00, plus a recoverable balance in the amount of $14,359.00, for a total amount due of $408,904.35, with interest accruing at the rate of $1,039.08 per month, (ii) as to Plaintiff's foreclosure claim, Plaintiff will be awarded a judgment of foreclosure upon the Property, and (iii) as to Plaintiff's quite title claim, Plaintiff will be awarded a judgment quieting title in the Property in its favor and against ALS.

III. Costs

¶ 9 Although Plaintiff did not file a separate motion for costs, in the Updated Declaration, A.J. Stone III, Esq., counsel for Plaintiff, made the following declarations under the penalty of perjury: (i) Plaintiff is entitled to an award of costs, including reasonable attorney's fees, pursuant to the Note, the Mortgage, Rule 54 of the Virgin Islands Rules of Civil Procedure, and Title 5 V.I.C. § 541, (ii) he reviewed the itemized invoice attached to the Updated Declaration and "the items are correct," "the services set forth therein were actually and necessarily performed," and "these disbursements were necessarily incurred in the action," (iii) the billing rate for A.J. Stone III, Esq. and Adam N. Marinelli, Esq. is $250.00 per hour, (iv) any duplication of the entries in the itemized invoice attached to the Updated Declaration "was directly related to [his] supervision of Attorney Marinelli in the prosecution of this matter," and (v) the "total amount of time spent in this matterfrom its inception through April 14, 2020 is 50.80 hours" and "the total amount of attorneys' fees incurred in this matter for billable work is $13,152.50, and the total amount of costs expended in this action is $881.00." (Updated Decl.)...