Opinion
Civil No. 2009-36.
June 3, 2009
Flavia E. Logie, Esq., St. Croix, U.S.V.I., For the plaintiff. Denise M. LeCointe, Pro se defendant. Enette J. LeCointe, Pro se defendant.
ORDER
Columbia Equities, Ltd. a/k/a Columbia Home Loans, LLC ("Columbia") allegedly loaned $130,950 to Denise M. LeCointe and Enette J. LeCointe (the "LeCointes") in December 2004. To secure the loan, Columbia executed a mortgage encumbering property the LeCointes are alleged to own in St. Thomas, U.S. Virgin Islands. Columbia commenced this action in February 2008, alleging that the LeCointes are in the default under the terms of the mortgage. Columbia seeks recovery of its loan and foreclosure on the mortgage.
This case was filed in the St. Croix Division of this Court. By order dated February 24, 2009, the case was transferred to the St. Thomas/St. John Division and reassigned to the undersigned.
On January 30, 2009, the Clerk of Court entered default against the LeCointes after they failed to answer or otherwise defend within the time required by law. See Fed.R.Civ.P. 55(a). Columbia now moves for default judgment against the LeCointes.
Federal Rule of Civil Procedure 55(b)(2) allows courts to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading. Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n. 9 (3d Cir. 1990). "[N]o judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein." Fed.R.Civ.P. 55(b)(2); see also Murphy v. C.W., 158 Fed. Appx. 393, 396 (3d Cir. 2006) (not precedential). "The entry of a default judgment is largely a matter of judicial discretion, although the Third Circuit has emphasized that such `discretion is not without limits, however, and we have repeatedly stated our preference that cases be disposed of on the merits whenever practicable.'" Signs by Tomorrow — USA, Inc. v. G.W. Engel Co., Civ. No. 05-4353, 2006 U.S. Dist. LEXIS 56456, at *5-6 (D.N.J. Aug. 1, 2006) (quoting Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984)).
To meet its burden of showing that default judgment is appropriate, Columbia has attached to its moving papers the affidavit of Kathy A. Ramos, one of its asset recovery managers. The affidavit states, in relevant part:
At the time the [mortgage] was executed by the borrowers, to the best of the affiant's knowledge and belief, the borrowers had reached the full age of majority and were competent to manage personal affairs.
As of this date, unless otherwise noted as an exception, to the best of the affiant's knowledge and belief, the borrowers remain competent to manage personal affairs.
(Ramos Aff. ¶¶ 2-3, Feb. 9, 2009) (emphasis supplied).
Because the affidavit Columbia has provided is not based on the affiant's personal knowledge, it is not competent evidence and may not be considered by the Court. The record otherwise contains no competent evidence that the LeCointes are neither infants nor incompetent. Having failed to adduce any such evidence, Columbia has not met its burden of showing that default judgment is proper. See, e.g., USDA v. David, Civ. No. 2005-141, 2008 U.S. Dist. LEXIS 58862, at *4-5 (D.V.I. July 31, 2008)
The premises considered, it is hereby
ORDERED that the motion for default judgment is DENIED without prejudice.