Roosevelt Cayman Asset Co. v. Pérez
| Decision Date | 02 August 2021 |
| Docket Number | CIVIL NO.: 17-2058 (MEL) |
| Parties | ROOSEVELT CAYMAN ASSET COMPANY, Plaintiff, v. JOSÉ DÁVILA PÉREZ, et al. Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
On August 8, 2017, Roosevelt Cayman Asset Company ("Plaintiff") filed a complaint against José Dávila Pérez (also known as José Enrique Dávila Pérez), Mayra Seguinot Dávila (also known as Mayra Ivette Seguinot Dávila), and their Conjugal Partnership ("Defendants"). ECF No. 1. Pending before the court is Plaintiff's motion for summary judgment. ECF No. 43. Defendants did not file a response in opposition and Plaintiff's motion for summary judgment was deemed unopposed. ECF No. 50. This matter concerns an action for collection of monies and foreclosure of mortgage.
The purpose of summary judgment "is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992) (citations omitted). Summary judgment is granted when the record shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Rodríguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant presents a properly focused motion "averring 'an absence of evidence to support the nonmoving party's case[,]' [t]he burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both 'genuine' and 'material.'" Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). For issues where the nonmoving party bears the ultimate burden of proof, the party cannot merely "rely on an absence of competent evidence, but must affirmatively point to specific facts [in the record] that demonstrate the existence of an authentic dispute." McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citation omitted). The party need not, however, Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (emphasis in original) (citation omitted).
In assessing a motion for summary judgment, the court "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan, 904 F.2d at 115. There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability andlikelihood." Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). The court may, however, safely ignore "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).
On February 22, 2005, Defendants received a mortgage loan from Doral Bank. Defendants' repayment obligation is evinced by a mortgage note ("the Mortgage Note") payable to Doral Bank or order that was executed before Notary Public Julio Francisco Fernández Rodríguez. ECF No. 41, at 1-2, ¶ 1; ECF No. 41-1. The principal and interests due under the Mortgage Note are payable in monthly installments. ECF No. 41, at 2, ¶ 4; ECF No. 41-1, at 1-2. The Mortgage Note in the principal sum of $330,080.00 bears interest on its unpaid principal balance at the rate of 5.95% per annum until the debt is paid in full. ECF No. 41, at 2, ¶ 2; ECF No. 41-1, at 1. The Mortgage Note provides for the payment of late charges in the amount of 5.00% of any monthly installment not received by the note holder within 15 days after the installment is due, and for the payment of 10% of the original principal amount to cover costs, expenses, and attorney's fees in the event that the person entitled to enforce the instrument is required to seek judicial collection. ECF No. 41, at 2, ¶ 3; ECF No. 41-1, at 1.
That same day, Defendants executed Mortgage Deed No. 268 ("the Mortgage Deed") before Notary Public Julio Francisco Fernández Rodríguez to secure the repayment of (a) the indebtedness evidenced by the Mortgage Note, (b) an amount of 10% of the original principal amount of the Mortgage Note to cover costs, expenses, and attorney's fees in the event that the holder of the note is required to foreclose the mortgage or seeks judicial collection, (c) anamount of 10% of the original principal amount of the Mortgage Note to cover any advances made under the Mortgage Deed, and (d) an amount of 10% of the original principal amount of the Mortgage Note to cover interests in addition to those secured by law. ECF No. 41, at 2-3, ¶ 5; ECF No. 41-2, at 1-3.
On July 28, 2012, the Mortgage Note was modified with a new principal in the amount of $309,117.81 with monthly installments of principal and interests in the amount of $1,594.34 bearing annual interest at a rate of 5.50% from September 1, 2012 until August 1, 2052. ECF No. 41, at 3, ¶ 6; ECF No. 41-3; ECF No. 41-6, at 3, ¶ 7. The modification was constituted by Modification Deed No. 524 executed before Notary Public Magda V. Alsina Figueroa. Id.
On October 31, 2013, the Mortgage Note was modified a second time with a new principal in the amount of $325,488.46 with monthly installments of principal and interests in the amount of $1,485.36; bearing annual interest at a rate of 5.00% from December 1, 2013 until November 1, 2018; and from December 1, 2018 until November 1, 2053 with monthly installments of principal and interests in the amount of $1,580.51, bearing annual interest at a rate of 5.50%; with a last payment in the amount of $17,448.23. ECF No. 41, at 3-4, ¶ 7; ECF No. 41-6, at 3, ¶ 8. The second modification was constituted by Modification Deed No. 721 executed before Notary Public Leilany Carrión Del Toro. ECF No. 41-4; ECF No. 41-6, at 3, ¶ 8; ECF No. 52-1.
The Mortgage Deed and modification deeds are valid and subsisting liens encumbering the property in question, and is described below in the Spanish language:
Urbana: Solar número 5 del bloque J de la Urbanización Paseo Los Corales I, radicado en el Barrio Pueblo e Higuillar de Dorado, Puerto Rico, con un área superficial de 647.31 metros cuadrados. En lindes por el Norte, en una distancia de 32.433 metros, con el solar número 6 del bloque UJ de la urbanización; por el Sur, en una distancia de 35.475 metros, con el solar número 4 del bloque J de la urbanización; por el Este, en una distancia de 19.946 metros, 12.895 metros y 2.519metros, con la Calle Cabo de Hornos de la Urbanización; y por el Oeste, en una distancia de 19.946 metros, con la Calle Mar de Cortés y pozo existente de la urbanización. En este solar enclava una casa para propósitos residenciales.
ECF No. 41, at 4, ¶ 8; ECF No. 41-2, at 19; ECF No. 41-3, at 3; ECF No. 41-4, at 3; ECF No. 52-1, at 3.2
In accordance with the Registry of Property, the Defendants are the owners of the property at issue. ECF No. 41, at 5, ¶ 12; ECF No. 41-5, at 1. Plaintiff is now the owner and holder of the Mortgage Note having acquired it in the ordinary course of business and is entitled to enforce it. ECF No. 41, at 5, ¶ 13; ECF No. 41-6, at 4, ¶ 11. It was expressly stipulated in the Mortgage Note and Mortgage Deed that default in the payment of the monthly installments or failure to comply with the covenants or agreements included in the Mortgage Note and/or the Mortgage Deed would authorize the person entitled to enforce the instrument to declare due and payable the entire principal and amount and accrued interest thereon, and to proceed with the execution or foreclosure of the mortgage. ECF No. 41, at 5, ¶ 14; ECF No. 41-1, at 1; ECF No. 41-2, at 16.
Plaintiff has attempted to collect the indebtedness evidenced by the Mortgage Note as twice modified. ECF No. 41, at 6, ¶ 17; ECF No. 41-6, at 5, ¶ 13. The entire principal sum and accrued interests and expenses have become due and payable pursuant to the acceleration clause of the Mortgage Note and the Mortgage Deed. Id. Defendants defaulted on the repayment obligation to Plaintiff and owe the principal sum of $316,959.45, of which $17,448.23 is adeferred principal that does not accrue interest and the balance amount of $299,511.22 plus interest over the unpaid principal balance at the interest rate which is currently equal to 5.00% per annum from February 1, 2017 until the debt is paid in full. ECF No. 41, at 6, ¶ 16; ECF No. 41-6, at 3-4, ¶ 9. In addition, Defendants owe late charges amounting to 5.00% of any and all monthly payments or installments in arrears over 15 days after the installment is due and all advances made pursuant to the provisions of the Mortgage Note and Mortgage Deed. ECF No. 41-6, at 4, ¶ 10; ECF No. 41-1, at 1; ECF No. 41-2, at 3. Defendants also owe an amount equivalent to 10% of the principal balance, or $32,548.84, as a liquidated amount to cover costs, expenses, and attorney's fees. ECF No. 41-6, at 4, ¶ 10.
Pursuant to Puerto Rico law, "[a] person receiving money or any other perishable thing on loan acquires its ownership,...
To continue reading
Request your trial