Lewis v. Belendez-Soltero

Filing 33

OPINION AND ORDER. GRANTED 16 MOTION for Summary Judgment filed by Edward S. Lewis. Signed by Judge Salvador E Casellas on 10/19/2010.(LB)

Lewis v. Belendez-Soltero

Doc. 33

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO E D W A R D S. LEWIS Plaintiff v. E L I BELENDEZ SOLTERO D efendant C iv il No. 10-1299 (SEC)

OPINION AND ORDER P e n d in g before the Court is Plaintiff Edward S. Lewis' ("Plaintiff") Motion for Summary J u d g m e n t (Dockets ## 16 & 17), and Defendant Eli Belendez Soltero's ("Defendant") response th e re to (Docket # 27). After carefully considering the filings, the evidence on the record, and th e applicable law, Plaintiff's Motion for Summary Judgment is GRANTED. P r o c e d u r a l Background O n April 9, 2010, Plaintiff filed the present suit against Defendant under diversity ju ris d ic tio n , for breach of contract and collection of monies. Docket # 1. In the complaint, P la in tif f seeks a judgment in the principal amount of $100,000 plus costs and accrued interest a t the rate of 8% until payment, as agreed in the Promissory Note signed by the parties. Plaintiff a ls o moved for a writ of attachment ordering the pertinent section of the Registrar of the P ro p e rty to record and levy an attachment upon Defendant's property in Vieques, PR to secure th e aforementioned loan. Docket # 3. Defendant answered the complaint (Docket # 11), and f ile d an opposition to Plaintiff's motion for writ of attachment (Docket # 15). Shortly thereafter, Plaintiff filed the present motion, essentially arguing that the loan was d u e and payable as a result of Defendant's failure to comply with the Promissory Note's c o n d itio n s . Docket # 16. Defendant opposed. Docket # 27.

Dockets.Justia.com

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CIVIL NO. 10-1299 (SEC)

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O n August 24, 2010, this Court granted Plaintiff's request for a writ of attachment. D o c k e t # 31. Accordingly, the Registrar of the Property, Section of Fajardo, was instructed to re c o rd and levy an attachment on Defendant's property as described in the Promissory Note. The corresponding writ was issued on September 1, 2010. Docket # 32. Standard of Review T h e Court may grant a motion for summary judgment when "the pleadings, depositions, a n s w e rs to interrogatories, and admissions on file, together with the affidavits, if any, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." Rule 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 ) ; Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). In

re a c h in g such a determination, the Court may not weigh the evidence. Casas Office Machs., In c . v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines th e record in the "light most favorable to the nonmovant," and indulges all "reasonable in f e re n c e s in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1 st C ir. 1994). O n c e the movant has averred that there is an absence of evidence to support the n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at least o n e fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be resolved in favor of either party and, therefore, requires the finder of fact to make `a choice between the p a rtie s ' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 112, 116 (1 st C ir. 2005)(citing Garside, 895 F.2d at 48 (1st Cir. 1990)); see also SEC v. Ficken, 546 F.3d 45, 5 1 (1st Cir. 2008).

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In order to defeat summary judgment, the opposing party may not rest on conclusory a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 4 0 7 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once th e party moving for summary judgment has established an absence of material facts in dispute, a n d that he or she is entitled to judgment as a matter of law, the "party opposing summary ju d g m e n t must present definite, competent evidence to rebut the motion." Méndez-Laboy v. A b b o t Lab., 424 F.3d 35, 37 (1st Cir. 2005) (citing Maldonado-Denis v. Castillo Rodríguez, 23 F .3 d 576, 581 (1st Cir. 1994). " T h e non-movant must `produce specific facts, in suitable evidentiary form' sufficient to limn a trial-worthy issue. . . . Failure to do so allows the summary judgment engine to o p e ra te at full throttle." Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1 st Cir. 1991) (w a rn in g that "the decision to sit idly by and allow the summary judgment proponent to c o n f ig u re the record is likely to prove fraught with consequence."); Medina-Muñoz, 896 F.2d a t 8 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989)) (holding that " [ t]h e evidence illustrating the factual controversy cannot be conjectural or problematic; it must h a v e substance in the sense that it limns differing versions of the truth which a factfinder must r e so lv e ." ) . Applicable Law and Analysis T h e relevant uncontested facts are as follows. On August 4, 2009, Plaintiff disbursed a lo a n to Defendant in the principal amount of $100,000.00. Docket # 17, ¶ 10. Belendez signed, e x e c u te d and delivered a Promissory Note agreeing to repay said loan to Plaintiff by August 4, 2 0 1 0 , with interest thereon at the rate of 8.00% per annum until final and complete payment.

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CIVIL NO. 10-1299 (SEC)

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Id . at ¶ 3 & 10. Plaintiff is the current holder of said note. Id. at ¶ 18. Pursuant to the Promissory N o te , Defendant agreed to secure the loan with a second mortgage on his property Quinta J a c a ra n d a , located at Sector La Mina, Puerto Real, Vieques, within a 30 day period after the s ig n in g , execution and delivery of the Promissory Note. Id. at ¶ 4 & 11. The Promissory Note e x p lic itly required that the debtor secure the loan with a mortgage within 30 days of the signing a n d delivery of the Promissory Note; failure to do so and cure the default within 30 days notice, w o u ld lead to the acceleration of the loan. Id. at ¶ 9. O n February 25, 2010, via electronic mail and by Certified Mail Receipt Request,1 D e f e n d a n t requested that Plaintiff secure the payment of the loan within 30 days with the second m o rtg a g e as agreed in the note. Id. at 13. Defendant failed to secure the loan with the second m o rtg a g e and failed to cure the default within said 30 day period. Id. at ¶ 5. As a result thereof, th e principal amount of $100,000 with interest at the rate of 8.00% became due and payable to P la in tif f . Id. at ¶ 6. Defendant has not paid Plaintiff the principal amount of $100,000 and a p p lic a b le interest. Id. at ¶ 7 & 15. A c c o rd in g to Defendant, his title to Quinta Jacaranda has not been recorded by the R e g is tra r of the Property because of errors and omissions in deeds related to said property and o th e r previously segregated lots from the same land. Docket # 27-1, p. 3. He further points that th e property has not been mortgaged in favor of any other party, since his request to record the p ro p e rty is still pending. Id. at p. 5. Defendant notes that Plaintiff was aware of the problems f a c e d with the recording of the property since he consulted Plaintiff's counsel on this matter b e f o re the present suit was filed. Id. at p. 6. Lastly, he avers that there is no closing date for the s a le of the property. Id. at p. 5.

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The notification was also delivered to Defendant's postal address on the March 1, 2010. Id.

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at 14.

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U p o n reviewing the record, this Court finds that insofar as the Promissory Note's due d a te was August 4, 2010, the loan is now due and payable. The controversy as to whether D e f e n d a n t did in fact make reasonable efforts to register the property, and to secure a second m o rtg a g e in Plaintiff's favor is now moot for purposes of determining Defendant's obligation to pay the loan. Under the Promissory Note, there is no additional penalty for failure to secure th e second mortgage aside from making the obligation due and payable without further notice o r demand. Therefore, Defendant is obligated to pay Plaintiff the loan amount plus the a p p lic a b le interest. Accordingly, Defendant shall pay Plaintiff the loan in the amount of $ 1 0 0 ,0 0 0 plus 8% interest as of August 10, 2010 and $21.91 daily until paid in full. This does n o t, however, affect the writ of attachment previously issued by this Court. Conclusion B a s e d on the foregoing, Plaintiff's motion for summary judgment is GRANTED. In San Juan, Puerto Rico, this 19 th day of October, 2010. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge