Barreto v. Autoridad De Acueduectos Y Alcantarillados (In re Barreto)
| Decision Date | 24 July 2012 |
| Docket Number | CASE NO. 07-01435 BKT,ADVERSARY NO. 10-0064 |
| Parties | In re: JULIO OSCAR ACEVEDO BARRETO GLORIA ESTHER PEREZ CARDONA Debtor(s) JULIO OSCAR ACEVEDO BARRETO GLORIA ESTHER PEREZ CARDONA d/b/a PANADERIA FAMILIAR Plaintiff v. AUTORIDAD DE ACUEDUECTOS Y ALCANTARILLADOS; CORPORACION DEL FONDO DEL SEGURO DEL ESTADO; DEPARTAMENTO DEL TRABAJO Y RECURSOS HUMANOS; and WIGBERTO LUGO MENDER ,TRUSTEE Defendant(s) |
| Court | United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Puerto Rico |
Before the Court is the Motion for Partial Summary Judgment filed by Julio Oscar Acevedo Barreto and Gloria Esther Pérez Cardona, d/b/a Panaderia Familiar ("Plaintiffs") as to co-defendant Puerto Rico's Aqueduct and Sewers Authority ("PRASA") (Dkt. No. 111), Plaintiffs' Statement of Uncontested Material Facts (Dkt. No. 111), PRASA's Opposition to Statements of Uncontested Material Facts (Dkt. No. 125), PRASA's Opposition to Motion for Partial Summary Judgment (Dkt. No. 126) and Plaintiffs' Reply to Oppositionto Motion for Partial Summary Judgment (Dkt. No. 141). For the reasons set forth below Plaintiffs' Motion for Partial Summary Judgment is hereby DENIED.
On March 20, 2007,Plaintiffs filed their Chapter 7 voluntary petition (Dkt No. 1),Case No. 07-01435. On April 4, 2010, Plaintiffs filed an adversary proceeding against PRASA, the State Insurance Fund Corporation, the Department of Labor and Human Resources and Wigberto Lugo Mender, Esq., Chapter 7 Trustee, for allegedly violating the automatic stay provisions of 11 U.S.C. §362 (k)(1) and (2). On February 7, 2012, Plaintiffs filed a Partial Motion for Summary Judgment as to the allegations against PRASA(Dkt No. 111). Plaintiffs contend that PRASA received timely and sufficient notice of the filing of the bankruptcy case, as evidenced by the Certificate of Service of March 23, 2007 (Dkt No. 4).In the bankruptcy case PRASA was an unsecured creditor, as such, was included in the schedules and in the CM/ECF creditor mailing matrix. Nevertheless, from February 22, 2008 through February 19, 2010, PRASA purportedly continued to assess and collect a claim against Debtors through the continued mailing of written collection notices.
Plaintiffs further allege that on July 15, 2010, PRASAacknowledged the fact that the bankruptcy case had been filed. Notwithstanding, PRASA continued to send standard computer generated bills and a termination letter, which Plaintiffs characterize as contemptuous, coercive and harassing collection tactics. Plaintiffs assert that PRASA's actions constituted willful violations of the automatic stay under 11 U.S.C. § 362(k), as PRASA intended its actions and also failed to take corrective action.
On the other hand, PRASA alleges that due to unusual and extenuating circumstances it had no knowledge of Plaintiffs' bankruptcy filing and the ensuing automatic stay. PRASA sustains that around the petition date, PRASA's one employee who receives the bankruptcy notices and codified the accounts was murdered. To that effect, during the turmoil of events immediately following such murder, Plaintiffs' bankruptcy notice was purportedly misplaced. For this reason, PRASA alleges that it had no actual knowledge of Plaintiffs' bankruptcy case. Therefore, PRASA's computer system continued generating invoices reflecting pre and post-petition charges, and admits seventeen notices were sent to Plaintiffs between February 2008 and February 2010requesting payment.
PRASA alleges that it never received any other communications from Plaintiffs. However, PRASA never terminated Plaintiffs' waterservice and denies having sent collection letters threatening Plaintiffs with terminating their water service. PRASA argues that the letter sent on July 10, 2012 is not a termination letter, but a 20-day notice requesting adequate assurance of payment pursuant to 11 U.S.C. § 366. Said letter was sent by PRASA after learning of the bankruptcy filing. PRASA sustains that because of the isolated, unusual circumstance of the death of that one employee PRASA had no knowledge of the bankruptcy case. Therefore, PRASA asserts that it did not violate the automatic stay. PRASA argues that when it became aware of Plaintiffs bankruptcy case, no further action or activity was undertaken by them. Accordingly, PRASA contends that it is immune from liability for stay violations because without the actual knowledge of the filing of plaintiff's bankruptcy case, its actions were not willful. It is PRASA's positions that the actions undertaken against Plaintiffs were but a result of a clerical mistake, hence, no violation of the automatic stay occurred.
PRASA requests that Plaintiffs' Statement of Uncontested Material Facts and exhibits (Dkt. No. 111) be stricken, and the Motion for Partial Summary Judgment be denied. This request is founded on Plaintiffs' failure to comply with Local Civil Rule for the U.S. District Court for the District of Puerto Rico 56(b) (L.Cv.R. 56(b)(D.P.R. 2009)),which requires that a motion forsummary judgment be supported by separate, short, and concise statements of material facts as to which the moving party contends there is no genuine issue of material fact to be tried, each of which must be supported by a record citation. PRASA also contends that Plaintiffs failed to provide record citations in support of paragraphs number 2 and 4 of their statement of uncontested facts violating L.Cv.R. 56(b) (D.P.R. 2009).
PRASA sustains that Plaintiffs failed to comply with Federal Rules of Civil Procedure 56(c)(1)(A)&(B), because they only cite as supporting evidence the allegations contained in the unsworn Third Amendment Complaint (Dkt. No. 33, page 8). The allegations included in said complaint have not been authenticated by a declaration of the Plaintiffs, therefore, PRASA claims that they are insufficient for purposes of summary judgment. According to PRASA, Plaintiffs also failed to submit an affidavit or unsworn statement with their motion, thus failing to authenticate their exhibits in violation of Federal Rules of Civil Procedure 56(c)(2)&(c)(4), which precludes its consideration on a motion for summary judgment. Finally, PRASA argues that Plaintiffs failed to include an English translation of the documents referenced in Plaintiffs' Statement of Uncontested Facts and included as exhibits(Dkt No. 111), as required by Local Bankruptcy Rule 9070-1(c).
The Court's discretion to grant summary Judgment is governed by Rule 56 of the Federal Rules of Civil Procedure applicable in bankruptcy by the Federal Rules of Bankruptcy Procedure 7056. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c); Borges ex rel. S.M.B.W.I v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010). The moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact in the record, through definite and competent evidence in order to attain its summary judgment. Maldonado-Denis v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). A 'genuine' issue is one that could be resolved in favor of either party, and a 'material fact' is one that has the potential of affecting the outcome of the case. Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir.2009), quoting Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir.2004).
When considering a petition for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. In re Roldan, 2012 WL 2221410 (Bankr.D.P.R.June 13, 2012),Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 473 (1962). The moving party will not be successful if any essential element of its claim or defense requires trial. In re Roldan, supra. Once the moving party has presented a properly supported motion, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the Court's denial of the motion of the summary judgment. Estrada v. Alemañy-Noriega, 806 F. Supp. 2d 510, 514 (D.P.R. 2011). A party may not rely upon bare allegations to create a factual dispute but is required to point to specific facts contained in affidavits, depositions and other supporting documents which, if established at trial, could lead to a finding for the nonmoving party. In re Roldan, supra, see also Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 818 (1st Cir.1980). Therefore, the moving party has the burden to establish that it is entitled to summary judgment and no defense is required where an insufficient showing is made. López v. Corporación Azucarera de Puerto Rico, 938 F.2d 1510, 1517 (1st Cir.1991).In order to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough,407 F.3d 11, 15 (1st Cir.2005). Hence, summary judgment is "inappropriate if inferences are necessary for the judgment and those inferences are not mandated by the record." In re EdgardoRyan Rijos & Julia E. Cruz Nieves v. Banco Bilbao Vizcaya & Citibank (In re Rijos), 263 B.R. 382, 388 (B.A.P. 1st Cir. 2001).
When a party files a motion for summary judgment it must comply with the requirements of L.Cv.R. 56 (D.P.R. 2009), and file a statement of facts, set forth in numbered paragraphs, and supported by record citations. Hodge v. Roblex Aviation, Inc., CIV. 09-1445 (SEC), 2010 WL 2852854 (D.P.R. July 20, 2010) reconsideration denied, 09-1445 (SEC), 2010 WL 3363226 (D.P.R. Aug. 24, 2010). L.Cv.R. 56(b) (D.P.R. 2009)provides:
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