NITA N. BROWN, Plaintiff, Counter-Defendant v. PHILLIP N. BROWN, Defendant and Cross-Defendant v. SMALL BUSINESS ADMINISTRATION, Defendant, Cross-Plaintiff and Counter-Plaintiff v. BANK OF AMERICA GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, Defendants
Brown v. Brown
NITA N. BROWN, Plaintiff, Counter-Defendant v. PHILLIP N. BROWN, Defendant and Cross-Defendant v. SMALL BUSINESS ADMINISTRATION, Defendant, Cross-Plaintiff and Counter-Plaintiff v. BANK OF AMERICA GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, Defendants
NITA N. BROWN, Plaintiff, Counter-Defendant v. PHILLIP N. BROWN, Defendant and Cross-Defendant v. SMALL BUSINESS ADMINISTRATION, Defendant, Cross-Plaintiff and Counter-Plaintiff v. BANK OF AMERICA GOVERNMENT EMPLOYEES RETIREMENT SYSTEM, Defendants
Civil No. 73/1981
District Court of the Virgin Islands Div. of St. Croix
July 13, 1981
Arnold M. Selke, Esq., St. Thomas, VJ., for plaintiff
Mark Milligan, Esq., Christiansted, St. Croix, V.I., for defendant Phillip N. Brown
Daniel F. Murray, Esq-., Christiansted, St. Croix, V.I.,/or defendant SB A
Robert L. King, Esq., St. Thomas, V.I., for defendant Government Employees
SILVERLIGHT, Judge, Sitting By Designation
MEMORANDUM
The Small Business Administration ("SBA") seeks a writ of attachment to protect any judgment it may receive on a loan it alleges to be due. The loan in question was initially set at $7,800 and was secured by a mortgage in that amount. By amendment to the promissory note, the loan amount was later increased to $14,400. The mortgage was not amended to reflect this increase. The amount alleged as still outstanding is also in excess of the face amount of the mortgage.
The Virgin Islands attachment statute strictly limits the situations in which the writ of attachment may be ordered. The writ is unavailable if a contract sued upon is secured by a mortgage. 5 V.I.C. § 251(1). It is clear that at least $7,800 of the SBA loan is secured by a mortgage and thus the SBA is not entitled to the further security of attachment as to that amount. It is not clear whether the amendment to the promissory note also acted as an amendment to the mortgage. If the mortgage was amended the SBA is surely not entitled to any attachment. If the mortgage was not so amended, perhaps an attachment is in order.
As the attachment statute authorizes issuance of the writ in only limited circumstances, the court feels that the proponent of an attachment bears the burden of showing its propriety in a given case. The SBA has not demonstrated that part of its loan is unsecured or that attachment is available on a partially unsecured loan; accordingly the writ will not issue. The court will reconsider the SBA's prayer for attachment should be SBA choose to address the questions noted above.
ORDER
The premises considered and for the reasons stated in the memorandum of even date herewith,
IT IS ORDERED that the Small Business Administration's motion seeking a writ of attachment be, and hereby is, denied.