U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT No. 24-2264 DLJ MORTGAGE CAPITAL , INC v. Neal Antonio Stevens

U.S. COURT OF APPEALS FOR THE T HIRD CIRCUIT
No. 24-2264
DLJ M ORTGAGE C APITAL , INC .
v.
N EAL A NTONIO S TEVENS; C ARLVIN L EONARD S TEVENS, a/k/a
Calvin Leonard Stevens; S YLVIN R ODFORD S TEVENS;
K EVIN W INFIELD S TEVENS; R HEA R ENEA S TEVENS; et al.
N EAL A NTONIO S TEVENS; C ARLVIN L EONARD S TEVENS, a/k/a
Calvin Leonard Stevens; S YLVIN R ODFORD S TEVENS;
K EVIN W INFIELD S TEVENS; R HEA R ENEA S TEVENS,
Appellants
_____________________________
On Appeal from the District Court, D.V.I.
Judge Wilma A. Lewis, No. 1:21-cv-00013
Before: H ARDIMAN, B IBAS, and PORTER , Circuit Judges
Submitted Dec. 9, 2025; Filed Feb. 18, 2026
_____________________________
O PINION OF THE C OURT
B IBAS, Circuit Judge. In litigation and life alike, you must
speak up when it is time to do so. Carlton Stevens’s heirs did
not. After a lender foreclosed on Stevens’s properties in St.
Croix, the heirs raised a slew of affirmative defenses in their
answer to the complaint. Yet when the lender moved for

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summary judgment, the heirs failed to mention them. Now,
they belatedly seek to revive the defenses, but they forfeited
them by their silence. And because their one remaining argu-
ment is meritless, we will AFFIRM the District Court.
I. DLJ FORECLOSES ON STEVENS’S PROPERTIES
This case starts with a piece of land. In 1997, Carlton Ste-
vens mortgaged several adjacent plots to Banco Popular de
Puerto Rico in exchange for a $392,000 loan, to be repaid with
interest. The mortgage described the land as comprising sev-
eral plots, some developed and some undeveloped. Stevens
stopped making payments and then died in 2011. Banco Popu-
lar later assigned its rights as mortgagee to DLJ.
In 2018, DLJ sued several of Stevens’s heirs, the IRS
(which had two tax liens on the properties), and three other
subordinate lienholders in the Superior Court of the Virgin
Islands. It raised four claims: debt, foreclosure, quiet title, and
reforming a scrivener’s error in the mortgage for omitting
another undeveloped plot (called 20-BC) from the list of prop-
erties mortgaged. The IRS removed the lawsuit to federal court
under 28 U.S.C. § 1444, but it was dismissed as a party once
the parties realized that the tax liens had expired. The heirs
failed to appear at all, so the clerk of court entered defaults
against them.
Nearly six months later, the heirs finally showed up, filing
an answer with thirty-three affirmative defenses. They and DLJ
then stipulated to vacate the defaults against them. But when
DLJ moved for summary judgment on the debt and foreclosure
claims, the heirs again failed to respond. Several months later,
before ruling on the unopposed summary judgment motion, the

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District Court sua sponte asked DLJ to submit documents sup-
porting its request for reformation. After DLJ did so, the Dis-
trict Court gave the heirs a chance to register their opposition
to that claim. The heirs filed a three-page response objecting to
reformation on equitable grounds. But they submitted no evi-
dence of their own.
The District Court then granted summary judgment against
the heirs and the one subordinate lienholder who had appeared
in the case, as well as default judgment against the rest of the
subordinate lienholders. It also reformed the mortgage to include
the omitted plot, 20-BC, concluding that its omission was a
mutual mistake. The heirs now appeal. We review the grant of
summary judgment de novo, applying the same standard as the
District Court. Tundo v. County of Passaic, 923 F.3d 283, 286–
87 (3d Cir. 2019). We review the District Court’s finding that
there was a mutual mistake justifying reformation for clear error.
See Fed. R. Civ. P. 52(a)(6); Thomas v. Trans World Airlines,
Inc., 457 F.2d 1053, 1058 (3d Cir. 1972) (Aldisert, J., concur-
ring); see also Resolution Tr. Corp. v. Midwest Fed. Sav. Bank
of Minot, 36 F.3d 785, 799 (9th Cir. 1993).
II. THE HEIRS FORFEITED THEIR DEFENSES
On appeal, the heirs primarily argue that the District Court
was wrong to grant summary judgment to DLJ on the debt and
foreclosure claims, throwing spaghetti at the wall and hoping
that some of the mess will stick. They say the foreclosure vio-
lated federal statutes and regulations, that DLJ acted with un-
clean hands, that it failed to prove that it was a holder in due
course of the note and mortgage, and that its suit was barred by
the Virgin Islands’ six-year statute of limitations for breaches

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of contract. But though their answer mentioned those defenses,
the heirs never raised them in opposition to summary judgment.
We have never had occasion to decide what happens if a
party fails to re-raise a defense in opposition to summary judg-
ment. But our sister circuits treat that failure as an “abandon-
ment of the defense.” Diversey Lever, Inc. v. Ecolab, Inc., 191
F.3d 1350, 1352–53 (Fed. Cir. 1999); see also Vela v. City of
Houston, 276 F.3d 659, 678 (5th Cir. 2001) (holding that, even
when an issue was pleaded earlier in its answer, a party “in his
opposition to a motion for summary judgment cannot abandon
an issue and then … by drawing on the pleadings resurrect the
abandoned issue”) (quoting another Fifth Circuit case, in turn
quoting Edward B. Marks Music Corp. v. Cont’l Rec. Co., 222
F.2d 488, 492 (2d Cir. 1955)); Grenier v. Cyanamid Plastics,
Inc., 70 F.3d 667, 678 (1st Cir. 1995) (similar); Est. of Shapiro
v. United States, 634 F.3d 1055, 1060 (9th Cir. 2011) (similar);
cf. Butler v. Daimler Trucks N. Am., LLC, 74 F.4th 1131, 1151
(10th Cir. 2023) (same result for failure to raise factual dis-
pute); Sprafka v. Med. Device Bus. Servs., Inc., 139 F.4th 656,
662 (8th Cir. 2025) (same result for failure to oppose basis for
summary judgment).
We now hold, consistent with those cases, that a party’s
failure to raise a defense in opposition to summary judgment
forfeits that defense, even if the party raised it in an answer
earlier in the litigation. That means that the party cannot renew
the defense before us, since we will not “consider on appeal
issues which were not presented to the district court.” Royce v.
Hahn, 151 F.3d 116, 125 (3d Cir. 1998).

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We pause to underscore our use of the term “forfeiture”
rather than “waiver” in this context. The distinction between
the two matters: “Although we cannot reach waived argu-
ments, appellate courts may ‘resurrect’ forfeited arguments in
‘extraordinary circumstances.’ ” United States v. Dowdell, 70
F.4th 134, 140 (3d Cir. 2023) (quoting Wood v. Milyard, 566
U.S. 463, 471 & n.5 (2012)). “ Waiver is the ‘intentional relin-
quishment or abandonment of a known right.’ ” Id. (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (2023)). Forfeiture is the
“failure to make the timely assertion of a right.” Id. (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)). Under our
precedents, when a litigant raises an argument “in passing
(such as, in a footnote)” but fails to “squarely argue[ ]” it, we
consider it a forfeiture, not a waiver. Kalu v. Spaulding, 113
F.4th 311, 344 n.21 (3d Cir. 2024); see also United States v.
Heatherly, 985 F.3d 254, 270 (3d Cir. 2021) (treating failure to
“develop[ ] … arguments properly” as forfeiture). That logic
applies with equal force when a litigant formulaically invokes
an affirmative defense in an answer, but fails to mention, let
alone develop, the defense in opposition to summary judgment.
So we use the term “forfeiture” to describe that situation.
By not even deigning to respond to DLJ’s summary-
judgment motion, Stevens’s heirs forfeited their arguments
attacking the District Court’s grant of summary judgment. And
no “extraordinary circumstances” exist that could persuade us
to address those arguments on the merits notwithstanding the
heirs’ forfeiture. Dowdell, 70 F.4th at 140. So we will affirm
the District Court’s entry of summary judgment in DLJ’s favor.

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III. THE HEIRS’ CHALLENGE TO REFORMATION FAILS
Although the heirs did not respond to DLJ’s summary judg-
ment motion, they did respond (at the District Court’s urging)
to DLJ’s arguments for reforming the mortgage to include plot
20-BC. They echo those arguments on appeal. But we will not
disturb the District Court’s finding that the parties made a
mutual mistake warranting reformation unless it was clearly
erroneous. That deferential standard means that the heirs’ chal-
lenge to the District Court’s decision to reform the mortgage
loses on the merits.
“Where a writing that evidences or embodies an agreement
… fails to express the agreement because of a mistake of both
parties …, the court may at the request of a party reform the
writing to express the agreement ….” Massac v. Gov’t of V.I.,
Off. of Lt. Gov., 74 V.I. 320, 325 (Super. Ct. 2021) (quoting
Restatement (Second) of Contracts § 155 (1981)). The party
seeking reformation bears the burden of proving mutual mis-
take by clear and convincing evidence. Id.
Below, DLJ’s primary (only, really) evidence in favor of
reformation was a government map of the subject properties
from 1972, which notes that plot 20-BC was to be joined for-
ever with one of the plots referenced in the mortgage docu-
ments, plot 20-BB. (DLJ also proffered the 1996 quitclaim
deed conveying the properties to Stevens, which referred to the
1972 map.) Yet the 1972 map is not particularly strong evi-
dence of a mutual mistake, since it notes that two other plots
(20-BD and 20-BE) were also to be “conjoined in perpetuity,”
and the mortgage documents referenced both of those plots
individually. App. 18 (quoting D. Ct. Dkt. No. 92-1).

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The other evidence that DLJ submitted was even less per-
suasive. For example, DLJ provided records of 2014 and 2018
title searches, both of which concluded that the two plots were
forever joined. But those searches not only postdated the mort-
gage documents; they also relied on the same 1972 map and
1996 quitclaim deed. DLJ also submitted property-tax records
listing plot 20-BC together with the other plots, all under a sin-
gle parcel ID number. But the tax records say little on their
own, because that single parcel ID number also included a plot
(20-B) everyone agrees was not encumbered by the mortgage.
With all that said, the heirs submitted zero evidence under-
mining the weak evidence offered by DLJ. And they submit
none before us, instead just stressing the mortgage’s failure to
mention plot 20-BC, a failure uncorrected in a later modifica-
tion of the mortgage. Yet that will often be true in cases of
mutual mistake; a mistaken omission is no barrier to fixing
such a mistake. The heirs also claim that the mortgage is a con-
tract of adhesion, suggesting that unequal bargaining power
made it inequitable to reform the contract. But even if it was
an adhesion contract, “the mere fact that a contract is adhesive
does not—without more—render it unconscionable” and unfair
to enforce. Allen v. Hovensa, LLC, 59 V.I. 430, 440 (2013).
And the heirs never argue, let alone show, that the mortgage’s
specific terms were so substantively unreasonable as to prevent
enforcement.
Were we confronting the question in the first instance, we
might well conclude that DLJ failed to show the existence of a
mutual mistake by clear and convincing evidence. But we are
not. Instead, we are reviewing the District Court’s contrary
finding for clear error. We may disturb the District Court’s

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conclusion only if it is (1) “completely devoid of minimum ev-
identiary support displaying some hue of credibility,” or (2)
“bears no rational relationship to the supportive evidentiary
data.” DiFederico v. Rolm Co., 201 F.3d 200, 208 (3d Cir.
2000) (internal quotation marks omitted). Since DLJ submitted
some probative evidence in support of its position and the heirs
submitted none, we cannot say that the District Court clearly
erred in finding a mutual mistake that warranted reformation
of the mortgage documents to include plot 20-BC.
* * * * *
To preserve arguments on appeal from a summary judg-
ment, litigants must have raised those arguments in the district
court at that stage of the litigation; they cannot rely on having
raised them in an earlier answer. Because the heirs failed to do
so and the District Court’s reformation of the mortgage was not
clearly erroneous, we will AFFIRM the District Court’s sum-
mary judgment for DLJ, as well as its reformation.
Counsel for Appellants
Martial A. Webster, Sr.
Counsel for Appellee
Matthew R. Reinhardt
Kyle R. Waldner
Q UINTAIROS P RIETO WOOD & B OYER

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