Pablos Duclerc v. Council of Owners of Condominio Westernlake Vill. 1 (In re Pablos Duclerc)
| Decision Date | 16 November 2020 |
| Docket Number | ADV. PROC. 19-00444,CASE NO. 18-04678 |
| Parties | IN RE: ALEXIS PABLOS DUCLERC; MARISOL VEGA PEREZ Debtors ALEXIS PABLOS DUCLERC; MARISOL VEGA PEREZ Plaintiffs v. COUNCIL OF OWNERS OF CONDOMINIO WESTERNLAKE VILLAGE 1 Defendant |
| Court | U.S. Bankruptcy Court — District of Puerto Rico |
This case is before the court upon Mr. Alexis Pablos Duclerc and Mrs. Marisol Vega Pérez (hereinafter referred to as "Plaintiffs" or "Debtors") Motion for Partial Summary Judgment Pursuant to Bankruptcy Rule 7056 and Federal Rule of Civil Procedure 56 and Memorandum of Law in Support Thereof contending that the Council of Owners Condominio Western Lake Village 1 (hereinafter referred to as the "Westernlake Village" or "Defendant") willfully violated the automatic stay provisions pursuant to 11 U.S.C. §362(a)(6) due to post-petition collection efforts, in particular by sending an invoice and an e-mail to collect pre-petition home owners' association fees included in the voluntary petition. Westernlake Village filed its Opposition to Plaintiff's Motion for Partial Summary Judgment and Memorandum of Law in Support Thereof arguing that there are genuine issues of material fact because at the time of the communications to Plaintiff Pablos Duclerc it did not have knowledge of Plaintiffs' bankruptcy filing and that in any event, its communications to Plaintiff Pablos Duclerc did not violate the automatic stay provisions. The Plaintiffs filed their Reply to Opposition filed by Defendant Westernlake to Plaintiffs' Motion for Summary Judgment arguing that there are no genuine issues of material fact.
The Plaintiffs request this court to award them actual damages estimated in an amount no less than $20,000 including emotional damages; punitive damages in an amount no less than $10,000; and reasonable attorney's fees under 11 U.S.C. §362(k). For the reasons stated herein the Plaintiffs' Motion for Partial Summary Judgment is granted.
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.
The Debtors filed a bankruptcy petition under Chapter 13 of the Bankruptcy Code on August 17, 2018 (lead case, No. 18-046781). The Debtors in their Schedule D- Creditors Who Have Claims Secured by Property, listed Westernlake as a secured creditor in the amount of $2,686.58. The address listed for Westernlake pursuant to the creditor matrix was the following:
(lead case, Docket No. 1). On August 17, 2018, the Debtors filed their Chapter 13 plan in which they proposed to surrender the real property that secures Westernlake's claim (lead case, Docket #2, pgs. 3-4, section 3.5). On August 17, 2018, the Debtors filed a Motion RequestingContinuation and/or Imposition of the Automatic Stay and the same was granted on September 4, 2018 (Docket Nos. 5 & 21). The 341 meeting of the creditors was held and closed on September 19, 2018 (lead case, Docket Nos. 8 & 29). On October 3, 2018, the Debtors filed an Amended Chapter 13 Plan dated October 2, 2018 (Docket No. 31). On December 13, 2018, the Debtors' amended Chapter 13 plan was confirmed (lead case, Docket No. 39).
On October 31, 2019, the Debtors initiated this adversary proceeding alleging willful violation of the automatic stay pursuant to 11 U.S.C. §362(a)(6) and for actual damages, including costs and legal fees and punitive damages under 11 U.S.C. §362(k) stemming from the alleged willful violation. The alleged wilful violation consists of the following: (i) on July 1, 2019, Westernlake sent the Plaintiff to his mailing address of record an invoice requesting payment for pre-petition homeowner's association fees; and (ii) on July 20, 2019, the Defendant through Mrs. Alice Martínez sent an e-mail to the Plaintiff Alexis Pablos demanding the payment for the pre-petition home owner's association fees and reiterating that he was liable for the debt. The e-mail referenced the invoice for pre-petition homeowner's association fees sent to the plaintiffs/debtors. On December 30, 2019, Westernlake filed its Answer to Complaint (Docket No. 10). On June 17, 2020, the Plaintiffs filed their Statement of Uncontested Facts Pursuant to District Court Local Rule 56(b) in Support to Motion for Summary Judgment (Docket No. 15). On June 17, 2020, the Plaintiffs filed their Motion for Partial Summary Judgment pursuant to Bankruptcy Rule 7056 and Federal Rule of Civil Procedure 56 and Memorandum of Law in Support Thereof (Docket No. 16).
On June 30, 2020, the Defendant filed a Motion for an Extension of Time to Answer or Oppose to Debtors' Motion for Partial Summary Judgment and the same was granted on July 1, 2020 (Docket Nos. 17 & 18). On July 29, 2020, the Defendant filed a Motion for Additional Extension of Time to Answer or Oppose Plaintiffs' Motion for Partial Summary Judgment and the same was granted on July 30, 2020 (Docket Nos. 20 & 21). On August 18, 2020, Westernlake filed its Opposition to Plaintiffs' Motion for Partial Summary Judgment and Memorandum of Law in Support Thereof arguing that there are genuine issues of material factsthat preclude summary judgment. Westernlake argues that at the time of its communication to Plaintiff Alexis Pablos Duclerc it did not have knowledge of Plaintiffs' bankruptcy filing because the "... [n]otice issued by the Clerk and sent by regular mail to Westernlake on August 22, 2018, was sent with an incomplete and/or incorrect name and to an insufficient and/or incomplete postal address." (Docket No. 23, pg. 10). Westernlake submits that its correct name and postal address is the following:
177 Avenida Algarrobo
Suite Administracion
Westernlake contends that the Unsworn Statements signed by Westernlake's President and Administrator Mr. Gilberto Ferrer and Mrs. Alice Martínez demonstrate that at the time of the July 20, 2019 communication to Plaintiff, Westernlake did not have knowledge of Plaintiffs' bankruptcy filing. Westernlake also argues that the invoice sent to Plaintiff on July 1, 2019 includes pre-petition and post-petition fees, for which the latter the automatic stay provisions cannot be enforced. "It must be underscored, that the communications sent by e-mail to Plaintiff Alexis Pablos Duclerc, do not specifically refer to either one, the pre or post-petition portion of Plaintiffs' indebtedness." (Docket No. 23, pg. 10). Westernlake argues that the Plaintiffs have failed to establish that the communication dated July 20, 2019 sent to Plaintiff Duclerc "...constitutes an 'act to collect,' since it does not provide a specific period of time to pay the fees and did not try in any form or manner, to coerce Plaintiff to pay the maintenance fees." Westernlake argues that its communication did not try in any form or manner to coerce Plaintiff to pay the maintenance fees. The communication does not even suggest any consequence in the event of non-payment (Docket No. 23, pg. 12). On August 18, 2020, the Defendant filed its Opposing Statement and Separate Statement of Material Facts (Docket No. 24). Subsequently, on September 21, 2020, the Plaintiffs filed their Reply to Opposition Filed by Defendant Westernlake to Plaintiffs' Motion for Summary Judgment by which they arguedthat: (i) Westernlake had actual knowledge of the bankruptcy filing because the notice was sent to the last address provided by Westernlake to Plaintiffs, prior to the bankruptcy filing (Docket No. 28, Exhibit C); (ii) Westernlake in its opposition argues that the Notice of Bankruptcy Filing was sent to an incomplete and/or incorrect address. The Defendant contends that the Notice was sent to 177 Ave. Algarrobos Apt. Administración, Mayaguez, PR 00682-6321 and that the correct postal address is the identification of "Apt." instead of "Suite." Defendant did not allege or demonstrate that this difference caused the Notice to be undeliverable; (iii) where a creditor challenges the accuracy of a listed address, the burden falls upon the creditor to establish that the address provided by the debtor was so incorrect as to fall short of this threshold. If the creditor is able to show that the address was inadequate for the purpose intended, the burden shifts to the debtor to show, that notwithstanding the incorrect address, the creditor had notice or actual knowledge of the case. Diaz Rodriguez v. Olympic Mortg. Corp. (In re Diaz Rodriguez), 357 B.R. 691, 696 (Bankr. D.P.R. 2006) (citing In re Kanipe, 293 B.R. 750 (Bankr. E.D. Tenn. 2002); (iv) the communications sent by Westernlake to Plaintiffs contain coercive language with the intent of collecting a payment and are not considered informative under the applicable law. Monthly statements sent to a debtor do not violate the stay if the letter includes a bankruptcy disclaimer because it becomes informative. McConnie Navarro v. Banco Popular de Puerto Rico (In re McConnie Navarro), 563 B.R. 127 (Bankr. D.P.R. 2017); and (v) the invoice and the e-mail sent to Plaintiff contains no language indicating that they were sent exclusively for information purposes, and there is no bankruptcy disclaimer included in either (Docket No. 28).
Rule 56 of the Federal Rules of Civil Procedure, is applicable to this proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure. Summary judgment should be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with theaffidavits, 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." Fed. R. Bankr. P. 7056; see...
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