Saint Lucia Co-Operativb Bank Ltd plaintiff v 1 Michael Molinaro 2 Theresa Iblinaro Defendant: [ECSC]

• Jurisdiction: Caribbean States
• Judge: d'Auvergne J
• Judgment Date: 04 November 1996
• Judgment citation (vLex): [1996] ECSC J1104-2
• Court: Eastern Caribbean Supreme Court
• Docket Number: SUIT NO. 62 OP 1995
• Date: 04 November 1996

[1996] ECSC J1104-2

INTHE HIGH COURT OF JUSTICE

(CIVII,)

A.D. 1996

SUIT NO. 62 OP 1995

Between:

Saint Lucia Co-Operativb Bank Limited

plaintiff

and

1 Michael Molinaro

2 Theresa Iblinaro

Defendant:

d'Auvergne J

1 .(In Chambers).

2 By a writ of summons indorsed with a statement of claim filed on the 24th of January, 1995 the Plaintiff claimed the following.

• (a) the sum of $195,974.20

• (b) interest thereon at 14% per annum from 3rd November 1994 to date of payment.

• (c) 10% collection fee and

• (d) the costs hereof.

3 On the 8th of February 1995 an appearance was filed and on the 28th March, 1995 an affidavit of service was filed which stated that the first named Defendant had been served on the 30th of January 1995.

4 Default Judgment dated 28th March 1995 was filed on the 28th April, 1995 and reads as follows:

"No defence having been served by the defendants herein, it is this day adjudged that the defendants do pay the Plaintiff the sum of $195,974.20 interest thereon at the rate of 14% per annum from 3rd November, 1994 to date of payment, 10% Collection fee and Costs."

5 On the 5th day of January, 1996 an application to set aside the Judgment by Default supported by an affidavit of Michael Molinaoear, the first Defendant was filed.

6 The said affidavit reads as follows:

7 I MICHAEL MOLINARO of Vieux-Fort in the State of Saint Lucia, doth make oath and say as follows to wit:-

• 1. That my wife Theresa Molinaro (now residing in the U.S.A.) and I are the Defendants in this suit, and that I am duly authorised to swear to this Affidavit.

• 2. That we have been sued by the Plaintiff herein for the sum of $183,909.53 allegedly due and owing at 2nd November, 1994 as well as for interest in the sum of $12,064.68 to 2nd November, 1994.

• 3. That we are not owing these sums of monies since we have repaid sums totalling about $200,000.00.

• 4. That we doth honestly and verily believe that we have a good Defence with a chance of success which sheweth that the Plaintiff's accounts in mistakenly incorrect, more particularly, as we have never been shown these accounts' as to any payments against principal and those against interests.

• 5. I humbly ask that the said Judgment entered by Default be set aside.

8 The matter was set down to be heard on the 26th of January, 1996 and after four (4) adjournments was eventually heard on the 24th of July, 1996.

9 Meanwhile, on the 5th of June, 1996 a Defence was filed on behalf of the Defendants (herein after referred to as the Draft Defence).

10 On the 10th of July, 1996 an Affidavit in Reply was filed by Rnhira Seales, branch manager of the Plaintiff and on the 23rd day off-July, 1996 a Supplementary Affidavit by Alnita Simmons, Managing Director of the Plaintiff was filed.

11 The latter affidavit was supported by an exnibit namely Hypothecarjr Obligation dated 25th April, 1984 by Michael Vivian Molinaro, Theresa Molinaro (Elritha Molinaro as Surety) in favour of The Saint Lucia Co-operative Bank Limited. To secure "Debts andt liabilities" up to a limit of $150,000.00 with interest thereon at the rate of 14% per annum.

12 At the trial learned Counsel for the Defendants informed the Court that to date the Judgment obtained in default of Defence on the 28th day of March and filed on the 28th day of April 1995 had not been served upon the Defendants.

13 By the application to set aside the Judgment by Default, the Supporting Affidavit and the draft defence, the Defendants appear to be denying that they owe the Plaintiff the sums claimed.

14 The affidavit in reply by Robin Seales, the branch manager of the Plaintiff indicates that the Defendants was granted an original loan (registered on the 3rd May, 1984 in Vol. 137a No.143964) for the sum of $150,000.00 repayable over 10 years at the monthly payment of $2,420.00, that from the inception the Defendants never met the required monthly repayments of the said $2,420.00 which resulted in an increase of the mortgage loan, that the Defendants queried the balance, the mortgage loan was recalculated by the Plaintiff and an amount of $29,871.09 which had been overcharged in interest was refunded in reduction of the mortgage loan and the monthly payment on the mortgage loan was recalculated so that the required monthly payment was reduced to $1,982.27; that despite the reduction the Defendants have failed to meet the said payment, but have been paying an average monthly payment of $1,037.34 which isinsufficient and has thus increased the mortgage loan balance and that despite the fact that the Defendants have made more than 10 years of mortgage payments, that on the 22nd day of November, 1995 the mortgage loan stood at $2 07,406.45 and was made up as follows:

(a) Interest payments	$174,063.10
(b) Principal payments	$ 33.343.35
	$207,406.45

15 and that the balance...