GCA Title 7, Chapter 24
7 GCA CIVIL PROCEDURE CH. 24 ACTIONS IN PARTICULAR CASES
CHAPTER 24 ACTIONS IN PARTICULAR CASES
- Article 1. Foreclosure of Mortgages.
- Article 2. Nuisance, Waste, and Willful Trespass in Certain Cases, on Real Property.
- Article 3. Conflicting Claims to Real Property, and Other Provisions Relating to Actions Concerning Real Estate.
- Article 4. Partition of Property.
- Article 5. Actions Against Steamers, Vessels, and Boats.
- Article 6. Contribution Among Joint Tortfeasors.
ARTICLE 1 FORECLOSURE OF MORTGAGES
- § 24101. Foreclosure of Mortgages.
- § 24102. The Complaint in an Action for Foreclosure of a Mortgage.
- § 24103. Trial and Judgment in Foreclosure Suits.
- § 24104. Sale of the Mortgaged Property.
- § 24105. Disposition of Proceeds.
- § 24106. Disposition of Proceeds in Case the Debt is Not All Due.
- § 24107. Judgment for Balance After Sale of Property.
- § 24108. Final Record.
§ 24101. Foreclosure of Mortgages.
Any action for the recovery of any debt, or the enforcement of any right secured by mortgage on real or personal property, must be in accordance with the provisions of this Chapter. All actions for the foreclosure of a mortgage or other encumbrance upon real estate must be brought in the Superior Court. SOURCE: CCP § 726 as amended by P.L. 9-256, effective 1/8/1969.
§ 24102. The Complaint in an Action for Foreclosure of a Mortgage.
In all actions for the foreclosure of a mortgage, the complaint shall set forth the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor; a description of the mortgaged property; a statement of the date of the note or other obligation secured by the mortgage, and the amount claimed to be unpaid thereon; and the names
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and residences of all persons having or claiming an interest in the property subordinate in right to that of a holder of the mortgage, all of whom shall be made defendants in the action. No person holding a conveyance from or under the mortgagor of property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the Department of Land Management at the time of the commencement of the action, need be made a party to such action, and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been a party to the action. SOURCE: CCP § 726a.
§ 24103. Trial and Judgment in Foreclosure Suits.
If, upon trial in such action, the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and costs, and shall render judgment for the sum so found due, and order that the same be paid into court within a period of three (3) months in the case of real estate mortgage or other encumbrance upon real estate, or within a period of one (1) month in the case of a mortgage upon personal property, from and after the date on which the order was made. SOURCE: CCP § 726b.
§ 24104. Sale of the Mortgaged Property.
When the defendant, after being directed to do so, as provided in the last preceding section, fails to pay the principal, interest, and costs at the time directed in the order, the court shall order the property (or so much thereof as may be necessary) to be sold in the manner and under the regulations that govern sales of real estate under execution; but such sale shall not affect the rights of persons holding prior encumbrances upon the same estate or a part thereof. The sale, when confirmed by decree of the court, shall operate to divest the rights of all the parties to the action and to vest their rights in the purchaser. Should the court decline to confirm the sale, for good cause shown, and should set it aside, it shall order a resale in accordance with law. SOURCE: CCP § 726c.
§ 24105. Disposition of Proceeds .
The money arising from the sale of mortgaged property, under the regulations hereinbefore prescribed, shall, after deduction of costs of sale, be paid to the person foreclosing the mortgage, and when there shall be any
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surplus, after paying off such mortgage or other encumbrance, the same shall be paid to junior encumbrances in the order of their priority, to be ascertained by the court, or if there be no such encumbrances, or there be a surplus after payment of such encumbrances, then to the mortgagor or his agent, or to the person entitled to it. SOURCE: CCP § 727.
§ 24106. Disposition of Proceeds in Case the Debt is Not All Due.
If the debt for which the mortgage or encumbrance was held is not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease; and afterwards, as often as more becomes due for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without injury to the parties, the whole shall be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper. SOURCE: CCP § 728.
§ 24107. Judgment for Balance After Sale of Property.
Upon the sale of any real property, under a decree for a sale to satisfy a mortgage or other encumbrance thereon, if there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall give a decree against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the decree; otherwise the plaintiff shall he entitled to execution at such time as the balance remaining would have become due by the terms of the original contract, which time shall be stated in the decree. SOURCE: CCP § 729.
§ 24108. Final Record.
The final record in the action shall set forth, in brief, the petition and other pleadings, judgment, orders, the proceedings under the order of sale, and the decree confirming the same, and the name of the purchaser, with a description of the estate purchased by him. A certified copy of such record shall be recorded in the Department of Land Management. SOURCE: CCP § 729a.
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CH. 24 ACTIONS IN PARTICULAR CASES
ARTICLE 2 NUISANCE, WASTE & WILLFUL TRESPASS IN CERTAIN CASES ON REAL PROPERTY
NOTE: This Article is now found in 21 GCA Chapter 23. It was placed in Title 21 as it deals with real property, the subject of that Title.
ARTICLE 3 CONFLICTING CLAIMS TO REAL PROPERTY AND OTHER REAL ESTATE ACTIONS
NOTE: This Article 3 is now found in 21 GCA Chapter 25, as it deals with real property.
ARTICLE 4 PARTITION OF PROPERTY
- § 24401. Who May Bring Actions for Partition.
- § 24402. Action for Partition of Personal Property.
- § 24403. Interest of All Parties Must be Set Forth in the Complaint.
- § 24404. Lienholders not of Record Need not be Made Parties.
- § 24405. Plaintiff Must File Notice of Lis Pendens.
- § 24406. Summons; to Whom Directed.
- § 24407. Unknown Parties May be Served by Publication.
- § 24408. Answer of Defendant; What to Contain.
- § 24409. Rights of All Parties May be Put in Issue.
- § 24410. Partial Partition.
- § 24411. Rights of Lienholders.
- § 24412. Question of Sale or Partition; Appointment of a Referee.
- § 24413. Death or Insanity of Party.
- § 24414. Partition Must be According to Rights of Parties. Sale of Undivided Interests. Allotment of Shares to Each Party.
- § 24415. Report of Referees.
- § 24416. Court May Confirm, etc., the Report; Judgment Binding on Whom.
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7 GCA CIVIL PROCEDURE CH. 24 ACTIONS IN PARTICULAR CASES
§ 24401. Who May Bring Actions for Partition.
When several co-tenants own real property as joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives or for years, or when real property is subject to a life estate with remainder over, an action may be brought by one or more of such persons, or, where property is subject to a life estate with remainder over, by the life tenant, for a partition thereof according to the respective rights of the persons interested therein, and for a sale of such property, or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners. SOURCE: CCP § 752. COMMENT: See, as for partition of real property, Tabor v. Ulloa (1963) 323 F.2d. 823.
§ 24402. Action for Partition of Personal Property.
When several persons are co-owners of any personal property, an action may be brought by any one or more such co-owners for a partition thereof; or in case partition cannot be had without great prejudice to the owners, for the sale thereof, and partition of the proceeds according to the respective interests of the parties. In all such actions, the provisions of this Chapter shall govern wherever applicable. Real and personal property may be partitioned in the same action. SOURCE: CCP § 752a.
§ 24403. Interest of All Parties Must be Set Forth in the Complaint.
The interests of all persons in the property, whether such persons are known or unknown, must be set forth in the complaint, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the parties, is unknown to the plaintiff, or is uncertain or contingent, or the ownership of the inheritance depends upon an executory devise, or the remainder is a contingent remainder, so that such parties cannot be named, that fact must be set forth in the complaint. SOURCE: CCP § 753.
§ 24404. Lienholders Not of Record Need Not Be Made Parties.
No person having a conveyance of or claiming a lien on, the property, or some part of it, need be made a party to the action, unless such conveyance or lien appears of record. SOURCE: CCP § 754.
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§ 24405. Plaintiff Must File Notice of Lis Pendens.
Immediately after filing the complaint in the court having jurisdiction, the plaintiff must record in the Department of Land Management a notice of the pendency of the action containing the names of the parties so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing such notice for record, all persons shall be deemed to have notice of the pendency of the action. SOURCE: CCP § 755; amended by P.L. 5-54 eff. 7/1/60.
§ 24406. Summons; to Whom Directed.
The summons must contain a description of the property sought to be partitioned, and must be directed to all of the persons named as defendants in the complaint, and when it shows that some person, whose name is unknown to the plaintiff, has or claims an interest in, or lien upon, the property, the summons must also be directed to all persons unknown who have or claim any interest in, or lien upon, the property. SOURCE: CCP § 756.
§ 24407. Unknown Parties May be Served by Publication.
If a party having a share or interest is unknown, or any one (1) of the known parties resides outside of the Territory of Guam, or cannot be found therein, and such fact is made to appear by affidavit, the summons may be served on such absent or unknown party by publication, as in other cases when publication is made, the summons, as published, must be accompanied by a brief description of the property which is the subject of the action. SOURCE: CCP § 757.
§ 24408. Answer of Defendant; What to Contain.
If the defendant fails to answer within the time allowed by law, he is deemed to admit and adopt the allegations of the complaint. Otherwise, he must controvert such of the allegations of the complaint as he does not wish to be taken as admitted, and must set forth his estate or interest in the property, and if he claims a lien thereon, must state the date and character of the lien and the amount remaining due, and whether he has any additional security therefor, and if so, its nature and extent, and if he fails to disclose such additional security, he must be deemed to have waived his lien on the property to be partitioned. SOURCE: CCP § 758.
§ 24409. Rights of All Parties May be Put in Issue.
The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried, and determined in such action; and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court before the sale can be ordered; except that where there are several unknown persons having an interest in the property, their rights may be considered together in the action, and not as between themselves. SOURCE: CCP § 759.
§ 24410. Partial Partition.
Whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition, in the first instance, among all the parties in interest, the court may first ascertain and determine the shares or interest respectively held by the original co-tenants, and thereupon adjudge and cause a partition to be made, as if such original co-tenants were the parties, and sole parties, in interest, and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire. SOURCE: CCP § 760.
§ 24411. Rights of Lienholders.
If it appears to the court that there are outstanding liens or encumbrances of record upon such real property, or any part thereof, which existed and were of record at the time of the commencement of the action, and the persons holding such liens are not made parties to the action, the court must order such persons to be made parties to the action by an amended or supplemental complaint. SOURCE: CCP § 761.
§ 24412. Question of Sale or Partition; Appointment of a Referee.
If it appears by the evidence, whether alleged in the complaint or not, that the property or any part of it is so situated that partition cannot be made without great prejudice to the owners, or where property is subject to a life estate and the remainder is a contingent remainder, the court may, and in the latter case must, order the sale thereof; otherwise, upon the requisit