                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-3972
                                       ___________

                                  A. JEFFREY WEISS;
                                   GARRY GARTEN

                                             v.

                                    JOAN OAT,
                                         Appellant
                       ____________________________________

                            On Appeal from the District Court
                           for the District of the Virgin Islands
                         (D.C. Civil Action No. 3-08-cv-00123)
                       District Judge: Honorable Curtis V. Gomez
                       ____________________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                 on December 9, 2015

                Before: FISHER, KRAUSE, AND ROTH, Circuit Judges

                           (Opinion filed: February 19, 2016)



                                        OPINION*




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

       Before this Court is an appeal from the District Court’s order confirming the sale

of Appellant Joan Oat’s leasehold interest to satisfy a judgment in favor of Oat’s former

attorneys, Appellees A. Jeffrey Weiss and Garry Garten. For the reasons set forth below,

we will affirm.

       I. Background

       We write for the parties and therefore provide background only as relevant to the

issues on appeal. From 2002 to 2007, Oat, a resident of Connecticut, engaged attorneys

Weiss and Garten to represent her in several matters relating to her substantial

investments in a Virgin Islands-based company, Sewer Enterprises, Ltd.1 As a result of

that representation, Oat obtained both a money judgment against Sewer Enterprises and,

in satisfaction of that judgment, a lien on a leasehold it owned in the Virgin Islands. In

2011, Oat purchased that leasehold at a United States Marshal’s sale for $1,000,000.

       In 2008, Weiss and Garten sued Oat for their unpaid fees and costs in connection

with this representation. They requested, among other forms of relief, a declaration that

they possessed a valid lien against the judgment awarded to Oat as a result of the

litigation against Sewer Enterprises. After a bench trial, at which Oat did not appear, the

District Court determined that Oat was in breach of her contracts with Weiss and Garten

but did not specifically award either attorney a lien against the Sewer Enterprises


       1
           Weiss began representing Oat in 2005.

                                             2
judgment. The District Court entered money judgments for Weiss and Garten, which,

together with pre- and post-judgment interest, amounted to a total judgment against Oat

in excess of $650,000.

       In an effort to satisfy this judgment, Weiss and Garten filed with the District Court

a praecipe requesting a writ of execution directing a Marshal’s sale of the leasehold

interest Oat acquired from Sewer Enterprises. Under Virgin Islands law,2 real property

may be executed against only if a court’s judgment specifically prescribes such execution

or “if sufficient personal property cannot be found.” V.I. Code Ann. tit. 5, § 473(1)

(2014). In their amended praecipe, Weiss and Garten averred that Oat “has no personal

property and no bank accounts located within the territory, and that she has previously

represented to the District Court that she has no funds and no means to pay the amounts

owed to plaintiffs.” App. 72. The record reflects that throughout the litigation, including

on appeal where she proceeds in forma pauperis, Oat has represented to the court that she

is “indigent,” “destitute,” and “lack[s] . . . financial resources.” E.g., Appellant’s Br. 2;

App. 122-23. The District Court issued the writ of execution, and the Marshal held a sale

of the leasehold. Weiss and Garten were the only bidders at the sale, purchasing the

leasehold for $495,000.




       2
        Pursuant to Rule 69 of the Federal Rules of Civil Procedure, “[t]he procedure on
execution . . . must accord with the procedure of the state where the court is located.”
Fed. R. Civ. P. 69(a)(1). We therefore apply the relevant provisions of the Virgin Islands
Code.
                                               3
       On May 15, 2013, Weiss and Garten filed a motion in the District Court for an

order confirming the sale pursuant to V.I. Code Ann. tit. 5, § 489(1), and on May 23,

2013, Oat filed her opposition to the sale.3 On September 20, 2013, the District Court

issued an order confirming the sale, which Oat now appeals.

       II. Jurisdiction and Standard of Review

       The District Court, sitting in diversity, had jurisdiction to hear this case under 28

U.S.C. § 1332, and we have jurisdiction under 28 U.S.C. § 1291.

       We review a district court’s rulings on motions related to the execution of a

judgment for abuse of discretion. See, e.g., V.I. Nat’l Bank v. Tyson, 506 F.2d 802, 804

(3d Cir. 1974) (reviewing denial of motion for relief from order confirming sale for abuse

of discretion). In reviewing a decision for an abuse of discretion, we may affirm on any

basis supported by the record. See F.D.I.C. v. Deglau, 207 F.3d 153, 166 (3d Cir. 2000).

       III. Discussion

       In light of the fact that Oat is a pro se litigant, we construe her pleadings liberally.

See Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011). Oat argues that the District

Court’s order confirming the sale of her leasehold interest should be set aside because the

writ of execution directing the sale did not comply with V.I. Code Ann. tit. 5, § 473(1),

which requires that a Marshal attempt to satisfy a judgment out of the personal property

of the judgment debtor before executing against any real property. Weiss and Garten, on


       3
           Oat filed the same pleading a second time on May 31, 2013.

                                               4
the other hand, contend that Oat’s opposition to the confirmation of sale was untimely

under V.I. Code Ann. tit. 5, § 489(1) and that, in any event, the writ of execution was

proper given Oat’s repeated representations to the District Court that she is without

financial resources. We conclude that Oat’s objections give us no occasion to disturb the

District Court’s order.

       We first address Weiss and Garten’s argument that Oat’s opposition to their

motion for an order confirming sale was untimely, and for this reason, the District Court

was within its discretion to confirm the sale over her objections. Under § 489(1), which

applies “[w]henever real property is sold on execution,” Weiss and Garten were “entitled

. . . to have an order confirming the sale,” unless Oat filed her objections with the clerk

“within five days after the return [of the writ of sale].” The record reflects that the

Marshal made return of the writ of sale on Oat’s leasehold on April 24, 2013, and filed it

with the District Court on May 15, 2013. Oat had five days from the filing of the return

of the writ, or until May 20, 2013, to file her objections, Camacho v. Dodge, 947 F. Supp.

886, 892 (D.V.I. 1996), but the District Court Clerk’s office received the objection to the

sale on May 23, 2013.4 In light of the requirements of § 489(1), we conclude that Oat’s




       4
         Under Rule 69 of the Federal Rules of Civil Procedure, although local law
typically applies in execution proceedings, “a federal statute governs to the extent it
applies.” Fed. R. Civ. P. 69(a)(1). For this reason, Rule 6 applies to compute the
timeliness of a filing. Here, however, the distinction between federal and local law is
irrelevant; Oat’s filing occurred outside of the time allowed by Virgin Islands law, as
well. See V.I. Super. Ct. R. 9.
                                              5
objection was untimely and the District Court therefore did not abuse its discretion by

confirming the sale over that objection.

       Even if Oat’s objection were timely, however, the District Court did not abuse its

discretion in confirming the sale. Oat correctly points out that Virgin Islands law

requires, unless the judgment itself provides otherwise, that a writ of execution shall

direct the Marshal to “satisfy the judgment, with interest, out of the personal property of

[the judgment] debtor, and if sufficient personal property cannot be found, then out of the

real property belonging to [such debtor],” § 473(1), and furthermore, in the only case

interpreting this portion of the statute, the Virgin Islands Superior Court construed this

language strictly, requiring an attempt to execute on personal property before turning to

real property, see Citimortgage, Inc. v. Manning, No. ST-07-CV-456, 2011 WL 3855736,

at *3 (V.I. Super. Ct. July 7, 2011); but cf. Evcco Leasing Corp. v. Ace Trucking Co., 828

F.2d 188, 192 (3d Cir. 1987) (noting most jurisdictions construe such statutes as “merely

directory in nature” (quoting 30 Am. Jur. 2d Executions § 130 (1967))). Oat is also

correct that the record contains no evidence that the Marshal attempted to execute on

Oat’s personal property, and the execution on Oat’s real property thus does not appear to

have satisfied the requirements of § 473(1) as it has been construed by the Virgin Islands

Superior Court. That does not compel a ruling in Oat’s favor, however, for, although the

statute must be strictly construed, equitable defenses such as waiver or estoppel are still

applicable. See Evcco, 828 F.2d at 190, 196 (discussing similar New Jersey law).


                                              6
       In that vein, Weiss and Garten argue that any attempt to attach personal property

belonging to Oat would have been a “useless act” in light of Oat’s repeated statements

asserting, for example, that she is “indigent” and “destitute,” and for that reason the law

did not require any such attempt. Appellee’s Br. 16-20 (citing Republic Indus., Inc. v.

Cent. Pa. Teamsters Pension Fund, 693 F.2d 290, 296 (3d Cir. 1982)). We need not

reach Weiss and Garten’s contention, however, because we conclude on the basis of

estoppel that, in these circumstances, the law does not require an attempt to execute on

Oat’s personal property, regardless of whether such an attempt would in fact have been

useless.

       The doctrine of estoppel applies to prevent a party from asserting a legal right

where that party has made representations inconsistent with that legal right and the other

party reasonably relied on those representations, to its detriment. See, e.g., Bechtel v.

Robinson, 886 F.2d 644, 650 (3d Cir. 1989) (discussing Delaware law); Mitchell v. Aetna

Cas. & Sur. Co., 579 F.2d 342, 348 (5th Cir. 1978). Prior to Oat’s objection to the order

confirming sale, she repeatedly represented to the District Court and to Weiss and Garten

that she lacks financial resources. Such representations are inconsistent with Oat’s

asserting her legal right to have any personal property executed against before real

property. In reasonable reliance on those representations, Weiss and Garten drafted a

writ of execution directing a Marshal’s sale of her real property and pursued this relief in

the District Court. For these reasons, Oat is estopped from invoking the statute’s

protection of her real property to void the Marshal’s sale.
                                              7
        Oat also requests relief pursuant to Rule 60 of the Federal Rules of Civil

Procedure for “fraud on the court.” Appellant’s Br. 5. To the extent that Oat’s

opposition to the confirmation of sale can be construed as raising any arguments

cognizable under Rule 60, we may properly consider such arguments in this appeal. We

previously considered similar requests by Oat for Rule 60 relief when we ruled on her

appeal from the District Court’s denial of her motions for reconsideration in this matter.

As we explained in our order summarily affirming the District Court, in those motions

Oat “failed to identify any evidence suggesting that the judgment was obtained through

fraud.” App. 188. For the same reason, we conclude that Rule 60 relief is not warranted

here.

        IV. Conclusion

        For the reasons stated above, we will affirm the judgment of the District Court.




                                              8
