Gonzalez v. P.R. Treasury Dep't (In re Gonzalez)
| Decision Date | 19 June 2015 |
| Docket Number | ADV. PROC. NO. 14–00250 ESL,CASE NO. 14–01400 ESL |
| Citation | 532 B.R. 1 |
| Parties | In re: Luis A. Carrasquillo Gonzalez, Debtor Luis A. Carrasquillo Gonzalez, Plaintiff v. Puerto Rico Treasury Department, et al., Defendants |
| Court | U.S. Bankruptcy Court — District of Puerto Rico |
Enrique M. Almeida Bernal, Aleida Torres Huertas, Almeida & Davila PSC, San Juan, PR, for Plaintiff.
Olga Denisse Alvarez Gonzalez, Dept. of Justice/Federal Litigation, San Juan, PR, for Defendants.
This adversary proceeding is before the court upon the Motion to Dismiss (Docket No. 12) filed by the Treasury Department of Puerto Rico (the “PR Treasury Department”) alleging that it did not violate the automatic stay because the tax notices it sent to the Plaintiff fall under the exceptions of 11 U.S.C. § 362(b)(9)(D). Also before the court is the Plaintiff's Opposi tion alleging that “the collection letter sent to [him] does not fall [under the exceptions afforded in 11 U.S.C. § 362(b)(9) ]; it is not an audit, or a notice of tax deficiency or a demand for a tax return or an assessment for tax, it is a collection of a pre-petition tax debt accompanied by threat and coercion” (Docket No. 22, p. 6). For the reasons stated below, the Motion to Dismiss is hereby denied in part and granted in part.
On February 27, 2014 the plaintiff filed the instant Chapter 13 Bankruptcy petition. See Lead Case Docket No. 1. The PR Treasury Department was included in both the master address list and in Schedule E (Creditors Holding Unsecured Claims) of the Bankruptcy Petition in regards to the Plaintiff's pre-petition tax liability for the year 2013 in the amount of $933.00. Id.
On August 6, 2014, PR Treasury issued a Final Notice to the Plaintiff regarding his income tax debt for tax year 2013 informing him that he had a tax debt in the amount of $1,0603 (including principal and surcharges) and that in order to avoid the accrual of additional interest and surcharges, he should send such payment within 15 days. The letter also stated as follows:
On August 25, 2014, the PR Treasury Department filed Proof of Claim No. 10–1 in the priority amount of $933.00.
On October 22, 2014, the Plaintiff filed the instant adversary proceeding alleging that the Final Notice issued by the PR Treasury Department violated the automatic stay and thus claims actual damages in an amount no less than $10,000 and punitive damages in an amount no less than $25,000, plus costs and attorneys' fees. See Docket No. 1.
On January 20, 2015, the PR Treasury Department filed a Motion to Dismiss arguing that the Final Notice falls under the exceptions afforded in 11 U.S.C. § 362(b)(9), which warrants the dismissal of the instant adversary proceeding.
On January 27, 2015, the court entered an Order that reads as follows:
On March 18, 2015, the Plaintiff filed an Opposition to [ ] Motion to Dismiss alleging that the Final Notice “does not fall [under the exceptions afforded in 11 U.S.C. § 362(b)(9) ]” because “it is not an audit, or a notice of tax deficiency or a demand for a tax return or an assessment for tax, it is a collection of a pre-petition tax debt accompanied by threat and coercion” (Docket No. 22, p. 6). The Plaintiff also requested the court to find the PR Treasury Department liable for the violation of the automatic stay.
The Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b) and 157(a). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(1) and (b)(2). Venue of this proceeding is proper under 28 U.S.C. §§ 1408 and 1409.
Rule 56 of the Federal Rules of Civil Procedure, is applicable to this proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure, provides that summary judgment should be entered if 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 a judgment as a matter of law. See Fed. R. Bankr.P. 7056 ; In re Colarusso, 382 F.3d 51 (1st Cir.2004), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
“The summary-judgment procedure authorized by Rule 56 is a method for promptly disposing of actions in which there is no genuine issue as to any material fact or in which only a question of law is involved.” 10A Wright, Miller & Kane, Federal Practice and Procedure 3d § 2712, p. 198. “Rule 56 provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried.” Id. at 202–203. Summary judgment is not a substitute for a trial of disputed facts; the court may only determine whether there are issues to be tried, and it is improper if the existence of a material fact is uncertain. Id. at 205–206.
Summary judgment is warranted where, after adequate time for discovery and upon motion, a party fails to make a showing sufficient to establish the existence of an element essential to its case and upon which it carries the burden of proof at trial. Catrett, 477 U.S. at 322, 106 S.Ct. 2548. The moving party must “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).
For there to be a “genuine” issue, facts which are supported by substantial evidence must be in dispute thereby requiring deference to the finder of fact. Furthermore, the disputed facts must be “material” or determinative of the outcome of the litigation. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). When considering a petition for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) ; Daury v. Smith, 842 F.2d 9, 11 (1st Cir.1988).
The moving party invariably bears both the initial as well as the ultimate burden in demonstrating its legal entitlement to summary judgment. See Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; López v. Corporación Azucarera de Puerto Rico, 938 F.2d 1510, 1516 (1st Cir.1991). It is essential that the moving party explain its reasons for concluding that the record does not contain any genuine issue of material fact in addition to making a showing of support for those claims for which it bears the burden of trial. See Bias v. Advantage International, Inc., 905 F.2d 1558, 1560–61 (D.C.Cir.1990), cert. denied 498 U.S. 958, 111 S.Ct. 387, 112 L.Ed.2d 397 (1990).
The moving party cannot prevail if any essential element of its claim or defense requires trial. See López, 938 F.2d at 1516. In addition, the moving party is required to demonstrate that there is an absence of evidence supporting the nonmoving party's case. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548 ; Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir.1991) ; Daury, 842 F.2d at 11. In its opposition, the nonmoving party must show genuine issues of material facts precluding summary judgment; the existence of some factual dispute does not defeat summary judgment. See Kennedy v. Josep h thal & Co., Inc., 814 F.2d 798, 804 (1st Cir.1987) ; Kauffman v. Puerto Rico Telephone Co., 841 F.2d 1169, 1172 (1st Cir.1988) ; Hahn, 523 F.2d at 464. 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. See Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 818 (1st Cir.1980).
The moving party has the burden to establish that it is entitled to summary judgment; no defense is required where an insufficient showing is made. See López, 938 F.2d at 1517. The nonmoving party need only oppose a summary judgment motion once the moving party has met its burden. See Adickes, 398 U.S. at 159, 90 S.Ct. 1598.
Fed.R.Civ.P. 56 was extensively rewritten in 2010. See 10B Wright, Miller & Krane, Federal Practice & Procedure: Civil 3d § 2737. Amended subsection (a) of Fed.R.Civ.P. 56 now includes express authority for judgment on less than the entire case denominating it in its subsection title as “Partial Summary Judgment”, which allows summary judgment “upon all or any part” of a claim or defense by any party.
In the instant case, the uncontested facts are supported from...
To continue reading
Request your trial