Popular Auto, Inc. et al v. M/V Cukina et al

Filing 90

OPINION AND ORDER 87 MOTION to Set Aside Order [or MOTION FOR RELIEF UNDER RULE 60 (b)(6)] re: 86 ORDER granting 85 Motion requesting Order. Signed by US Magistrate Judge Camille L. Velez-Rive on 6/25/12. (ljt) Signed by US Magistrate Judge Camille L. Velez-Rive on 8/27/12.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
POPULAR AUTO, INC.
Plaintiff
v.

CIVIL NO. 10-2240 (CVR)

M/V ‘CUKINA’, its engines, tackle,
equipment and furnishing, etc., in rem;
RALPHIE R. PEREZ AGOSTO and
SHARON ISERN TORRES, and
their conjugal partnership,
Defendants.

OPINION AND ORDER
On February 7, 2012, this Court entered an Amended Judgment as to the M/V
CUKINA, in rem, and defendants Ralphie E. Pérez-Agosto and Sharon Isern-Torres
(hereafter “defendants”), in personam, and their conjugal partnership for a total of
$202,751.21, in principal, plus interest and/or per diem thereafter until full and total
payment, plus attorney’s fees and itemized costs. (Docket No. 58).
Defendants Pérez-Agosto and Isern-Torres filed a second motion to obtain relief
from judgment entitled “Motion for Relief under Rule 60(b)(6)”1. (Docket No. 87). Plaintiff
Popular Auto, Inc. (hereafter “plaintiff”) filed its reply. (Docket No. 89).
Defendants now seek to set aside this Court’s order granting plaintiff’s request to
depose in personam defendants so as to obtain post-judgment discovery. In fact, the initial
request by plaintiff for the deposition at issue was granted in part and denied in part.

1

The previous motion under Fed.R.Civ.P. 60(b)(1) (Docket No. 59) was ruled upon at Docket No. 60.

Popular Auto, Inc. v. M/V ‘Cukina’
Civil No. 10-2240 (CVR)
Opinion and Order
Page 2

(Docket Nos. 83 and 84). On June 22, 2012, plaintiff submitted its amended motion
requesting order to depose in personam defendants, in compliance with the Court’s
previous order, and it was allowed. (Docket Nos. 85 and 86).
In support of their second motion for relief, defendants submit plaintiff’s request and
the order issued allowing defendants’ deposition is contrary to the Opinion and Order
issued on February 3, 2012, in reference to the opinion as to summary judgment that a
deficiency judgment amount could not be then calculated and was as such not considered
a sum certain for which summary judgment on the particular issue was not adjudicated.
The post-judgment attempt to depose defendants in personam is considered as plaintiff’s
veil attempt to obtain the deficiency judgment. Thus, defendants seek relief from attending
the deposition, which they acknowledge is committed to the discretion of the Court. See
Fed.R.Civ.P. 60(b).2
Defendants previously objected to the minimum price bid of $90,000.00, obtained
at the public auction in execution of the judgment obtained by plaintiff under a general
allegation plaintiff failed to fulfill the obligation of obtaining the best possible price for the
vessel at the sale, having obtained thus the vessel for such low discounted price and now
attempts to obtain the difference as a deficiency on the mortgage from defendants, when
instead they may be able to finally sell the vessel for a generous profit.

2

Rule 60(b) allows for relief from judgment for (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud –whether intrinsic or extrinsic–, misrepresentation, or other misconduct of an adverse party; (4)
the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b) (1-6).

Popular Auto, Inc. v. M/V ‘Cukina’
Civil No. 10-2240 (CVR)
Opinion and Order
Page 3

Regardless that defendants have argued against the deficiency judgment, the fact is
that the relief solely addresses the issue of having been summoned to provide their
deposition testimony at the request of plaintiff, which has already been authorized by this
Court through some modification.
The summary judgment did not rule on the amount of the deficiency judgment as to
defendants in their personal capacities nor was it therein determined for then being
premature until the public auction was held. Any gap that could exist between the
appraised value of the mortgaged property and the price obtained at the foreclosure and
resulting public sale of the vessel, does not preclude plaintiff’s post-judgment discovery
through defendants’ deposition. More so, defendants are apprised that having already the
Court granted plaintiff’s request for post-judgment discovery, their failure to comply may
result in an order to show cause and the imposition of any applicable sanctions.
In view of the foregoing, the “Motion for Relief under Rule 60 (b)(6)”, which is
limited to defendants attending and offering their deposition testimonies as requested by
plaintiff, is DENIED. (Docket No. 87).
IT IS SO ORDERED.
At San Juan, Puerto Rico, this 27th day of August of 2012.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ-RIVE
UNITED STATES MAGISTRATE JUDGE