Pineiro v. Group

Decision Date22 September 2014
Docket NumberCIVIL NO. 07-2068 (DRD)
PartiesOMAYRA GIRAUD PINEIRO, Plaintiff(s), v. ORIENTAL GROUP d/b/a ORIENTAL BANK & TRUST, Defendant(s).
CourtU.S. District Court — District of Puerto Rico
OPINION AND ORDER

Pending before the Court are: (a) Plaintiff's Motion to Set Aside Judgment, Docket No. 97; (b) Oriental Bank's Opposition to "Plaintiff's Motion to Set Aside Judgment," Docket No. 99; and (c) United States of America's Motion to Join Defendant Oriental Bank's Opposition to Motion for Reconsideration, Docket No. 100.1 For the reasons set forth below, plaintiff's motion to set aside judgment is denied.

Factual and Procedural Background

The original complaint was filed on October 31, 2006 in state court and removed to this court on November 7, 2007 by the United States of America. This action is caused by the opening of bank account number 1411007218 by plaintiff Omayra Giraud Piñeiro ("Plaintiff" or "Giraud") at Oriental Bank and Trust ("Oriental"), on October 3, 2002, and the amount of $30,000.00 deposited in plaintiff's bank account with Oriental by her father Aureliano Giraud Padró on March 4, 2004.

At the time that plaintiff opened her bank account with Oriental, the contract used by the bank was entitled the "Consumer Deposit Account Agreement." See Certificate of Authentication,Docket No. 86-2, ¶¶ 3-10. As of this date, Oriental nor plaintiff have provided a copy of the original Consumer Deposit Account Agreement signed by plaintiff on October 3, 2002. Oriental, however, has provided "a true and exact copy of the ' Consumer Deposit Account Agreement used by Oriental Bank and Trust at the time Mrs. Giraud Piñero [sic] opened her account at Oriental Bank and Trust." See Docket No. 86-2, ¶ 9.

The following facts summarized below, were stipulated by the parties. See Joint Motion with Stipulated Material Facts, Docket No. 86-1, originally filed on December 13, 2011.

On or about February 2004, Oriental "was served with an administrative subpoena issued by the United States requesting that all accounts for certain individuals and corporations, be provided to them." See Docket No. 86-1, ¶ 1.2 Oriental complied with the terms of the subpoena, notwithstanding "that all business' accounts has [sic] already been closed and that Oriental Bank and Trust has already made the decision to close the accounts of Mr. Aureliano Giraud, his partnerships, corporations, and those of his designees and representatives, and family member [sic] but that, given these instructions, Oriental Bank and Trust will not implement the latter decision." See Docket No. 86-1, ¶ 4.

"On March 4, 2004 Mr. Aureliano Giraud Padró issued check number 1928, in the amount of $30,000.00, from his account at Oriental Bank and Trust and made it payable to 'Cash.'" See Docket No. 86-1, ¶ 5. On that same date, that is, "March 4, 2004 Mrs. Giraud visited an Oriental Bank and Trust branch and requested the withdrawal of most of the funds in her account by way ofa Manager's Check." Id., ¶ 6. "Oriental Bank and Trust's Compliance Department did not authorize the withdrawal requested by Mrs. Giraud and Mr. [Oscar] Cirilo [Compliance Officer of Oriental] immediately contacted Mr. Yant [Special Agent Todd Yant] and disclosed to him the transaction that Mrs. Giraud intended to execute and that Oriental Bank and Trust did not allow." Id., ¶ 7.

On March 9, 2004, "IRS Task Force Agent, Mr. Ocasio, requested that Oriental Bank and Trust revert the transaction where Mr. Giraud Padró deposited the sum of $30,000.00 in his daughter's (Mrs. Omayra Giraud) bank account and that the full amount of the funds be delivered to the United States of America in compliance with the Seizure Warrant." See Docket No. 86-1, ¶ 9. "The only funds seized by the United States were the $30,000.00 that Mr. Aureliano Giraud Padró transferred to Omayra Giraud's bank account through a check made payable to 'Cash' from his account #14110039113 at Oriental." Id., ¶ 10. "On March 9, 2004 Oriental Bank and Trust delivered to Mr. Ocasio, four Manager's checks (#14582, 14576, 14578 and 14575) in compliance with the Seizure Warrant and with Mr. Ocasio's instructions." Id., ¶ 11.

"On April 5, 2004 Oriental Bank and Trust notified Mrs. Omayra Giraud with the statement of her bank account (account Number 1411007218) reflecting all transactions in her account from March 6, 2004 to April 5, 2004, which included the reversion of the $30,000.00 deposit from her bank account (#1411007218) to her father's bank account (#1411003913). (Exhibit 8)." See Docket No. 86-1, Exhibit No. 1, Declaration of Desiree Meléndez Zayas, Assistance Compliance Officer, Oriental Bank and Trust, executed on December 13, 2011.

Thereafter, "[o]n April 29, 2004, and pursuant to 19 U.S.C. § 1607(a) and 18 U.S.C. § 983(a), the Drug Enforcement Agency ("DEA") sent written notice of this seizure by certified mail, return receipt requested, to Aureliano Giraud-Padró, at Bo. Carrizales, Carr. 493 Km. 1.0, Hatillo,P.R. 00659." See Docket No. 86-1, ¶ 13. However, "[o]n May 10, 2004 the U.S. Postal Service returned the notice stamped 'RETURNED TO SENDER,' No Such Number." Id., ¶ 14. On that same date, that is, April 29, 2004, the same notice was mailed to Oriental. See Docket No. 86-1, ¶ 15. The notice of seizure of the property was duly published in The Wall Street Journal and The San Juan Star for three successive Mondays: May 10, 17, and 24, 2004, "for the amount of $43,231,94 [sic] that was delivered by Oriental, in compliance with the Seizure Warrant, and that was the balance in account # 1411003913 that Mr. Giraud Padró kept in Oriental." Id., ¶ 16. The deadline to file a claim of the property pursuant to the published notice was June 3, 2004., "or if mailed notice was not received, June 23, 2004." Id., ¶ 16. "In addition, the published and mailed notices explained the option of filing a petition of remission or mitigation." Id.

Notwithstanding, "[n]o one made a claim for the property seized within the thirty (30) days from the date of publication of the Notice of Seizure or within thirty five (35) days from the date the Personal Seizure Notices were mailed by the United States' Government." Docket No. 86-1, ¶ 17.

The same notification procedure was followed again on August 4, 2004, that is, "the DEA sent written notice of this seizure by certified mail, return receipt requested, to Aureliano Giraud-Padró, Bo. Carrizales, Carr. 493, Km. 1.1, Hatillo, PR 00659." See Docket No. 86-1, ¶ 18. "This notice provided Aureliano Giraud-Padró until September 8, 2004, to file a claim." Id. "On August 23, 2004, the U.S. Postal Service returned the notice stamped 'RETURNED TO SENDER,' (Illegible)." Id. "After confirming Aureliano Giraud-Padró's current address, on August 4, 2004, pursuant to Title 19 U.S.C. § 1607(a) and 18 U.S.C. § 983(a), the DEA sent written notice of this seizure by certified mail, return receipt requested, to Aureliano Giraud-Padró, P.O. Box 142822, Arecibo, PR 00614." Id., ¶ 19. "This notice provided Aureliano Giraud-Padró until September 8,2004, to file a claim." Id. "On August 10, 2004, Mrs. Judith Piñero, signed in the 'Signature' block accepted delivery of this notice." Id. "Mrs. Omayra Giraud did not receive written notice of the seizure from DEA or IRS on March 9, 2004, or August 4, 2004." Id., ¶ 20.

As to Oriental's bank statements, the record shows that plaintiff failed to contest the declaration under penalty of perjury given by Ms. Desiree Meléndez Zayas, Assistant Compliance Officer of Oriental Bank and Trust, on December 13, 2011, wherein Oriental Bank and Trust specifically states that on April 5, 2004, plaintiff was notified with the statement of her bank account (#1411007218) showing all the bank transaction from March 6, 2004 to April 5, 2004, "which included the reversion of the $30,000.00 deposit from her bank account (#1411007218) to her father's bank account (#1411003913)." See Docket No. 86-1, Exhibit No. 1, ¶ 25. Ms. Meléndez' Statement further states that "[t]he first notice of any claim made by Mrs. Omayra Giraud to Oriental Bank and Trust, regarding the reversion of the $30,000.00 deposit from her account (#1411007218) to her father's bank account (#1411003913) was made by her [plaintiff] on December 13, 2004 and received on December 16, 2004 in the Oriental Bank and Trust Vista Azul Shopping Center Arecibo branch." See Docket No. 86-1, Exhibit No. 1, ¶ 26.

The record further shows that on September 3, 2004, Mr. Areliano Giraud Padró executed a Waiver and Agreement to Forfeit by Potential Third Party Claimant filed under Criminal No. 03361 (JAF), Docket No. 446-2, and the United States' Motion to Dismiss, Docket No. 89-1. The September 4, 2004 Waiver, which was executed after the amount of $30,000.00 was transferred from Mr. Giraud Padró's account to the account of Omayra Giraud Piñeiro, on March 4, 2004, also includes all funds deposited under the name of Mr. Aureliano Giraud Padró, his wife Mrs. Nilda Piñeiro Noriega, as well as Aureliano and Elliot Giraud Piñeiro, sons of Mr. GiraudPadró, with Oriental Bank and Trust, Account No. 1411003913. The Court notes, however, that since early in the year 2004, "Oriental Bank and Trust has already made the decision to close the accounts of Mr. Aureliano Giraud, his partnerships, corporations, and those of his designees and representatives, and family member [sic] but that given these instructions [the administrative subpoena issued by the United States on or about February 2004], Oriental Bank and Trust will not implement the latter decision." See Docket No. 86-1, ¶ 4. Hence, any transfer of funds made by Mr. Aureliano Giraud Padró on March 4, 2004, is null and void under the Seizure Warrant issued in Criminal No. 03-361 (JAF), on March 9, 2004, see Docket No. 86-1, Exhibit No. 4, and the September 3, 2004 Waiver and Agreement to Forfeit by Potential Third Party Claimant filed in Criminal No. 03-361 (JAF) under Docket No. 446-2, and the United...

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