                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 09-2799
                                      _____________

                                   RONALD MARTIN

                                             v.

                        BANCO POPULAR DE PUERTO RICO,
                                              Appellant
                                _____________

                 On Appeal from the District Court of the Virgin Islands
                                 (D.C. No. 08-cv-109)
                           District Judge: Curtis V. Gomez
                                  _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     May 6, 2010

             Before: SMITH, CHAGARES and JORDAN, Circuit Judges.

                                   (Filed: May 13, 2010)
                                     _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Appellant Banco Popular De Puerto Rico (“Banco Popular”) appeals from an order

of the District Court of the Virgin Islands of the United States granting summary

judgment in favor of Ronald Martin and ordering Banco Popular to specifically perform a

contract for the sale of real property. For the reasons stated below, we will affirm.
I.       Background

         The property at the center of this dispute is a condominium located on the island of

St. Thomas. At all times pertinent to this case, Banco Popular held a mortgage on the

condominium, which was owned by James L. Reed until July 13, 1995, when Reed died

intestate. His estate consisted of the condominium and less than $1,000 in cash. Reed

left only one heir, his daughter, Anngia Reed. On March 1, 1996, the Probate Division of

the Territorial Court of the Virgin Islands1 appointed Reed’s ex-wife, Helen M. Reed, as

the administratrix of the estate.

         On March 26, 2003, Anngia and Helen executed a deed in lieu of foreclosure to

Banco Popular because the estate lacked sufficient funds to cover the mortgage on the

condominium. It is undisputed that Anngia and Helen executed this deed for the purpose

of transferring title in the condominium to Banco Popular in full satisfaction of the

mortgage.

         On September 12, 2003, Banco Popular contracted to sell the condominium to

Martin for $38,000. As part of the contract, Banco Popular agreed to deliver “good,

marketable and insurable fee simple title to the [condominium] ... by Warranty Deed.”

(App. at 126.)

         The sale was never consummated, however, because Banco Popular asserted that it

was uncertain of its ability to comply with its contractual obligation to provide defect-free

     1
   During the pendency of this case, the Territorial Court became known as the Superior
Court.

                                              2
title. On August 21, 2002, more than six months prior to signing the deed in lieu of

foreclosure, Helen Reed had submitted a letter to the Probate Division attempting to

resign from her position as administratrix of the estate. There is no indication in the

record that the Probate Division ever granted Helen’s request.

       Banco Popular contends that Helen’s letter terminated her responsibilities as

administratrix. Thus, no representative of the estate actually joined in the transfer of the

condominium to Banco Popular, and the bank believed that the estate retained an interest

in the condominium, which impeded it from conveying fee simple title to Martin. Banco

Popular advances this as the reason why it has refused to perform its contractual

obligations.2

       On January 24, 2004, in an attempt to resolve the estate’s claim to the property,

Helen requested that the Probate Division reappoint her as the administratrix of the estate.

She also filed two motions seeking approval of the deed in lieu of foreclosure. However,

the Probate Division never acted on either her reappointment request or the motions.

       In January 2006, Banco Popular notified Martin that it was terminating the contract

because the bank believed that it did not own clear title to the condominium, and that, due



  2
    Banco Popular claims, without citing any evidence, that Martin retained a title insurer
but that the insurer refused to issue a title insurance policy due to Helen’s purported
resignation prior to execution of the deed in lieu of foreclosure. Martin disputes that he
was unable to obtain title insurance, and claims that “nothing on the record before either
the District Court or this Court indicat[es] that a title company ‘declined to insure title to
the ... [Condominium].’” (Appellee’s Ans. Br. at 16-17.) We are not inclined to credit
Banco Popular’s unsupported assertions about title insurance.

                                              3
to the Probate Division’s lengthy delay in ruling on Helen’s requests, it would not have

clear title for the foreseeable future. Martin objected to the termination. On October 4,

2006, the Probate Division entered an order closing administration of the estate and

finding that Anngia Reed was the sole owner of the condominium. Martin then filed suit

in Superior Court seeking specific performance of the sales contract.

       Banco Popular removed the case to the District Court of the Virgin Islands, and

that Court ultimately granted summary judgment in favor of Martin. The Court reasoned

that, under the law of the Virgin Islands, title to the condominium had vested in Anngia,

as Reed’s sole heir, at the moment of Reed’s death. The Court thus determined that

Anngia, in executing the deed in lieu of foreclosure, had transferred fee simple title to

Banco Popular. Further, the Court found that insofar as the estate retained any interest in

the condominium, that interest had been extinguished by the October 4, 2006 order of the

Probate Division. Therefore, because Banco Popular received fee simple title to the

condominium via the deed in lieu of foreclosure, and nothing prevented it from passing

marketable title to Martin, the District Court ordered specific performance of the sales

contract. Banco Popular then filed a timely notice of appeal.




                                              4
II.    Discussion 3

       Our review of a District Court’s order granting summary judgment is plenary.

Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3rd Cir. 2005). Because we apply the same

standard used by the District Court, id., we will affirm that Court’s order if it appears that

there is no genuine issue of material fact and that Martin is entitled to judgment as a

matter of law. F ED. R. C IV. P RO. 56(c). We must give Banco Popular, the non-moving

party, “every favorable inference that can be drawn from the record.” Kautz, 412 F.3d at

466.

       Banco Popular argues that the District Court erred in granting summary judgment

to Martin for two reasons. First, the bank contends that it never acquired fee simple title

to the condominium and therefore was excused from performing its obligations under the

contract. Second, it asserts that, even if it had title to the property, that title was, and

continues to be, unmarketable.




  3
    The District Court had jurisdiction pursuant to 28 U.S.C. § 1332 and 48 U.S.C.
§ 1612(a). While Banco Popular agreed to sell the condominum to Martin for $38,000,
the amount-in-controversy requirement of § 1332 is satisfied because it is undisputed that
the property is worth in excess of $75,000. See Columbia Gas Transmission Corp. v.
Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995) (“Where the plaintiff in a diversity action seeks
injunctive or declaratory relief, the amount in controversy ... is determined by the value of
the object of the litigation. (internal quotation omitted)). Jurisdiction in this Court is
proper under 28 U.S.C. §§ 1291 and 1294.

                                                5
       A.     Title To The Condominium

       The bank identifies two bases for its argument that it lacks fee simple title to the

condominium. First, it asserts that Anngia did not obtain title to the condominium until

the Probate Division entered its order on October 4, 2006 declaring her to be the sole

owner of the property. Thus, says Banco Popular, the deed in lieu of foreclosure executed

in March 2003 was insufficient to convey title because Anngia had not yet acquired the

property. That argument fails to apprehend the significance of the October 4 order. The

task of a probate court is to adjudicate the interests in a decedent’s property as they exist

at the moment of death. Cf. R ESTATEMENT (T HIRD) OF P ROP.: W ILLS AND D ONATIVE

T RANSFERS § 2.1(b) (1999) (“The decedent’s intestate estate ... passes at the decedent’s

death to the decedent’s heirs ... .”). Hence, when the Probate Division adjudicates an

interest in estate property, that order is retroactive to the moment of the decedent’s

passing. When the Probate Division entered the October 4, 2006 order, it was

determining who owned the property at the time Reed died on July 13, 1995.4 Its order

had no effect on Anngia’s deed to the bank because the Court’s order simply made clear

that Anngia took ownership of the condominium in July 1995.

  4
   Banco Popular builds upon its argument that Anngia did not acquire title to the
property until October 4, 2006 by invoking the full faith and credit clause of the
Constitution. It argues that, if we adopt its construction of the Probate Division’s order,
we are prohibited by that clause from finding that Anngia received title to the property at
an earlier date. However, as the Probate Division’s order adjudicated Anngia’s rights at
the moment that Reed died, the full faith and credit clause poses no obstacle to our
holding that Anngia had title to the property at the time she executed the deed in lieu of
foreclosure.

                                              6
       Second, the bank contends that, because Helen submitted a letter of resignation in

August 2002, the estate is not bound by the deed and retains an interest in the property.

Under Virgin Islands law, title to a decedent’s property vests in the decedent’s heirs at the

moment of death, but the administrator retains the right to use the property to satisfy the

debts and administrative costs of the estate. See V.I. CODE ANN. tit. 15, §§ 311, 428; see

also Gov’t of the V.I. v. Certain Parcels of Land in Estate Nisky, 713 F.2d 53, 57 n.10 (3d

Cir. 1983) (acknowledging that “Virgin Islands law recognizes the widely accepted

principle of descent providing that all real-property interests pass to the heirs upon the

death of the intestate ancestor and can be asserted by those heirs immediately”). The right

of the administrator is extinguished when the estate is closed by the Probate Division.

V.I. CODE ANN. tit. 15, §§ 311, 428. Thus, from the moment of death until the settlement

of the estate, the only individuals with any ownership interest in estate property are the

decedent’s heirs and the administrator.

       That means that, after Reed’s death, the only individuals who could have had any

interest whatsoever in the condominium were Anngia Reed—Reed’s only heir—and

Helen Reed, the adminstratrix of Reed’s estate. Both Anngia and Helen executed the

deed in lieu of foreclosure. Because Reed’s sole heir and his administratrix joined the

conveyance to Banco Popular, we conclude that the deed in lieu of foreclosure was

sufficient to vest fee simple title in the bank.




                                               7
       Banco Popular contends that Helen’s signature on the deed was insufficient to

convey the estate’s interest because she submitted a letter of resignation to the Probate

Division before executing the deed. That argument fails, however, because an

administrator cannot resign without court approval. See V.I. CODE ANN. tit. 15, § 241(a)

(providing that administrator resignations do not take effect without court approval).

Because nothing in the record indicates that the Probate Division ever responded to

Helen’s letter of resignation, she remained capable of acting on behalf of the estate at the

time she executed the deed to Banco Popular. Accordingly, Banco Popular acquired title

in fee simple absolute when Anngia and Helen executed the deed on March 26, 2003.

       B.     Marketability Of Title

       Even though the deed conveyed title, Banco Popular nevertheless argues that it

was not required to transfer the condominium to Martin because that title was not

marketable. Marketable title is title that can be “held or possessed in peace and quiet,”

and that is reasonably free from the threat of future litigation. 77 A M. J UR. 2 D Vendor &

Purchaser § 103. There must be no outstanding interest that might endanger the holder’s

right to continued possession of the property. Id. § 105. Title is not marketable if there is

a reasonable fear that another entity, such as an estate, retains the right to use or transfer

the property. See Barter v. Palmerton Area Sch. Dist., 581 A.2d 652, 654 (Pa. Super. Ct.

1990) (requiring a marketable title to be “free from liens and encumbrances”).




                                               8
       According to the bank, Helen’s resignation attempt rendered the title unmarketable

because it was unclear whether her signature was sufficient to bind the estate. Thus,

following execution of the deed, there remained a reasonable possibility that the estate

retained an interest in the property. The bank contends that this cloud hovered over the

title for so long that it became unable to transfer marketable title to Martin within a

reasonable amount of time, leaving it with no option other than to terminate the

agreement.

       Banco Popular is incorrect. On October 4, 2006, the Probate Division declared

that Anngia was sole owner of the condominium and closed administration of the estate.

That order conclusively extinguished any interest that the estate retained in any of Reed’s

property. See V.I. C ODE A NN., tit. 15, § 311 (“The ... administrator is entitled to the

possession and control of the property of the deceased ... until the administration is

completed ... .” (emphasis added)). Thus, there was no reasonable possibility that the

estate would assert an interest in the condominium after October 4, 2006, and the order of

the Probate Division dispelled any cloud that remained over the title. Banco Popular

therefore acquired marketable title at the time that order was issued. Under these

circumstances, the delay between the execution of the contract and Banco Popular’s

present ability to perform is not so lengthy as to justify the bank’s repudiation of the

contract.5

  5
   Banco Popular argues that the lengthy delay in resolving the marketability of title
absolves it from performing its obligations under the contract. The bank is correct that,

                                               9
III.   Conclusion

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment in favor of Martin and ordering Banco Popular to specifically perform

the Sales Contract.




absent a specified time for performance, contracts must be carried out within a reasonable
time. Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 284 (3d Cir.
2000) (“[W]here no time is fixed for the performance of a contract, by implication a
reasonable time was intended.” (citation omitted)). In some cases, delay to the extent
present in this matter may qualify as unreasonable, thereby excusing performance.
However, in this particular case, the delay is due largely to Banco Popular’s decision to
claim concern over marketable title as a basis for refusing to close, and that delay was
exacerbated by the Probate Division’s not addressing Helen’s motions to approve the
transfer of the condominium to the bank. At present, both the bank and Martin remain
capable of performing the contract, and Martin still desires to receive title to the
condominium. We therefore conclude that the delay between the execution of the
contract and Banco Popular’s present ability to perform is not so lengthy as to justify the
bank’s repudiation of the contract.

                                            10
