Roman-Perez v. Operating Partners Co. (In re Roman-Perez)

• Citation: 527 B.R. 844
• Decision Date: 06 April 2015
• Docket Number: CASE NO. 13–10908 ESL,ADV. PROC. NO. 14–00155 ESL
• Parties: In re: Daniel Roman–Perez, Cynthia Gonzalez–Arroyo, Debtors Daniel Roman–Perez, Cynthia Gonzalez–Arroyo, Plaintiffs/Debtors v. Operating Partners Co. LLC; et al., Defendants
• Court: United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Puerto Rico

527 B.R. 844

In re: Daniel Roman–Perez, Cynthia Gonzalez–Arroyo, Debtors
Daniel Roman–Perez, Cynthia Gonzalez–Arroyo, Plaintiffs/Debtors
v.
Operating Partners Co. LLC; et al., Defendants

CASE NO. 13–10908 ESL
ADV. PROC. NO. 14–00155 ESL

United States Bankruptcy Court, D. Puerto Rico.

Signed April 06, 2015

527 B.R. 847

Juan Manuel Suarez Cobo, Legal Partners PSC, San Juan, PR, for Debtors.

OPINION AND ORDER

ENRIQUE S. LAMOUTTE, Bankruptcy Judge

This adversary proceeding is before the court upon the Motion Requesting Partial Summary Judgment (the “Motion for Partial Summary Judgment, Docket No. 15) filed by Daniel Román Pérez and Cynthia

527 B.R. 848

González Arroyo (the “Plaintiffs” or the “Debtors”) alleging that defendant Operating Partners Co. LLC (the “Defendant” or “Operating Partners”) violated the automatic stay provision in 11 U.S.C. § 362(a) and the Fair Debt Collection Practices Act (“FDCPA”) by attempting to collect amounts not permitted by law, and seek a determination on the Defendant's liability for actual damages, attorneys' fees and punitive damages. Also before the court is the Defendant's Opposition to Summary Judgment (Docket No. 27) contending that there is no evidence to ascertain that Operating Partners willfully violated the automatic stay and that there was no intent or willful action on their part. For the reasons set forth below, the Plaintiffs' Motion for Partial Summary Judgment is hereby granted in part and denied in part.

Factual and Procedural Background

In 2011, Banco Bilbao Vizcaya Argentaria Puerto Rico (“BBVA”) filed a Complaint against the Debtors for collection of monies before the Puerto Rico Court of First Instance, Superior Court of Vega Alta, Case No. CD2011–382 (the “PR Court of First Instance”). The claimed debts were comprised of personal and credit cards loans. On February 15, 2012, the PR Court of First Instance entered a judgment against the Debtors.

BBVA transferred to Oriental Bank certain credits, including the Plaintiffs' credit card and personal loans. On July 10, 2013, Oriental Bank transferred those credits and loans to PR Acquisitions, which subsequently assigned such claims for collection to Operating Partners, a debt collector. See Claims Register Nos. 1–1 and 2–1 and Lead Case Docket Nos. 30 and 32.

On December 30, 2013, the Plaintiffs filed their Chapter 13 bankruptcy petition. See Lead Case Docket No. 1.

On January 3, 2014, PR Acquisitions filed Proof of Claims Nos. 1–1 and 2–1. PR Acquisitions and Operating Partners were included in the Creditor Matrix List on January 27, 2014. See Lead Case Docket No. 12, p. 51–52. PR Acquisitions acknowledges that it was duly notified and knew of the filing of the bankruptcy petition. See Docket No. 25–1, p. 2, ¶ 8.

On January 16, 2014, Operating Partners, as agent of PR Acquisitions, filed a motion to stay the proceedings at the PR Court of First Instance in light of the bankruptcy petition filed by the Plaintiffs. See Docket No. 25–2, p. 1, ¶¶ 1–2. In that same motion, Operating Partners' attorneys, Rodriguez–Carde Law Offices, P.S.C., through Attorney Yarymar González Carrasquillo, also sought leave to withdraw as legal counsel because their client had so requested it. See Docket No. 25–2, p. 1, ¶ 4.

On January 17, 2014, the Debtors also filed a motion to stay the proceedings before the PR Court of First Instance in light of the filing of their bankruptcy petition. See Docket No. 25–3.

On January 22, 2014, the PR Court of First Instance issued an Order¹ granting the motion to stay proceedings filed by the Plaintiffs in the instant case. The PR Court of First Instance did not rule upon the leave to withdraw its legal counsel. See Docket No. 25–4.

On February 11, 2014, Operating Partners, as agent of PR Acquisitions, filed before the PR Court of First Instance the following motions: (1) Motion to Request Substitution of Plaintiff informing that it had become the agent of PR Acquisitions to pursue that case; and (2) Motion Soli

527 B.R. 849

citing Order for Execution of the judgment previously entered in that case. See Docket Nos. 16–1 and 16–2.

On June 23, 2014, the Debtors filed a Complaint against Operating Partners that initiated the instant adversary proceeding (Docket No. 1) and on August 13, 2014, Operating Partners filed its Answer to Complaint (Docket No. 6).

On October 9, 2014, the Plaintiffs moved for partial summary judgment for the court to determine that Operating Partners violated: (a) the automatic stay in 11 U.S.C. § 362 ; (b) 15 U.S.C. § 1692f(1) for attempting to collect amounts not permitted by law using unconscionable methods; (c) 15 U.S.C. § 1692(e)(2) and (10) by falsely representing the character amount or legal status of the debt and using false representations or deceptive means to collect or attempt to collect a debt; and (d) 15 U.S.C. § 1692d by using conduct which has the consequence of harassing, oppressing or abusing the consumer since no judgment can be executed while under the protection of the automatic stay. They seek actual and punitive damages and attorneys' fees.

On October 17, 2014, the court entered an Order for the Defendant to “show cause within twenty one (21) days why partial summary judgment should not be entered in favor of plaintiff[s]” (Docket No. 22).

On November 7, 2014, the Defendant filed an Opposition to Summary Judgment (Docket Nos. 25, 27 and 28)² asserting that “Plaintiffs have no evidence to ascertain that Operating Partners' [sic ] willfully violated the automatic stay” but rather “it was Operating Partners the first party to inform the [PR Court of First Instance] that a bankruptcy proceeding had commenced and was the first to request the case to be stayed. In addition, counsel had requested withdrawal of its legal representation, which was granted by the court. Therefore, there was no reason for this attorney to pursue a case where she had already informed about the bankruptcy situation, requested stay of proceedings and then asked to be relieved from duty. Clearly a clerical error was made, which in any case was a moot action because the [PR Court of First Instance] had entered an order closing the case” (Docket No. 27, p. 3). It further contends that the “filing of the subsequent motions by an attorney that had requested withdrawal of the case, and granted by the court, was not made deliberately or with the intention to violate the automatic stay. It was an inadvertent act, a clerical mistake, a document that had remained on file without a date which was later stamped when it was erroneously sent” (Docket No. 27, pp. 5–6).

On November 7, 2014, the Plaintiffs filed a Motion Requesting the Court Takes Judicial Notice of the fact that “Operating Partners did nothing nor filed any motion to amend its illegal request”, referring to the last motions it filed before the PR Court of First Instance (Docket No. 29, p. 2, ¶ g.

On November 10, 2014, Operating Partners filed a Leave to File Unsworn Declaration of Attorney Yarymar González Carrasquillo, who had represented it before the PR Court of First Instance, attaching the following Unsworn Declaration Under Penalty of Perjury :

I, Yarymar Gonzalez, of legal age, attorney for Operating Partners Co., under penalty of perjury declare as follows:

527 B.R. 850

1. I represented Operating Partners in a collection case against Mr. Daniel Roman Perez and Cynthia Gonzalez, in the Court of First Instance of Vega Baja, Puerto Rico, case no. CD2011 382. This case was originally filed by Oriental Bank against Mr. Roman and Mrs. Gonzalez.

2. Operating Partners acquired the rights to pursue this collection case and I immediately filed a motion on January 14, 2014, informing the court that defendants had filed a bankruptcy petition, reason for which I requested stay of all proceedings. It should be noted that on said motion I did not specify that Operating Partners was a new party to the case nor I requested leave to substitute party.

3. Since the court had no knowledge of Operating Partner's substitution, I filed a motion on February 11[, 2014] to request and inform of such substitution. However, by clerical mistake on that same day a motion requesting execution of judgment that had already been drafted before my knowledge of the automatic stay, was also filed.

4. The filing of this motion of execution of judgment was not made intentionally since I was fully aware of the automatic stay, considering the fact that I had previously requested: the court weeks before to stay all proceedings. In fact, the Court obliged my request and entered an Order to close the case.

5. I declare that the filing of these subsequent motions had no intention of violating the automatic stay of debtors. These motions were notified directly to Mr. Daniel Roman and not an attorney because Operating Partners was never notified by Mr. Roman's counsel, Mr. Juan M. Suarez Cobo, when their motions were filed. Please take judicial notice of Mr. Juan M. Suarez Cobo's motions

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