ACM CCSC VI-A (Cayman) Asset Company v. Iturregui-Margarida et al
Filing
27
ORDER granting 21 motion for summary judgment. Signed by US Magistrate Judge Silvia Carreno-Coll on 7/24/2017. (VCC)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
ACM CCSC VI-A (CAYMAN) ASSET
COMPANY,
Plaintiff,
v.
CIV. NO.: 16-2394 (SCC)
CARLOS ENRIQUE ITURREGUI
MARGARIDA, ET AL.,
Defendants.
ORDER
This is an action for collection of monies and foreclosure
of mortgages. Plaintiff ACM CCSC VI-A (Cayman) Asset
Company (“ACM”) moved for summary judgment alleging
that there are no controversies of material fact regarding the
loan documents signed by defendants and the amounts owed
to ACM. Docket No. 21. The request stands unopposed.
Having reviewed the parties’ pleadings and supporting
documentation, we find that summary judgment against
ACM v. ITURREGUI-MARGARIDA
Page 2
defendants is proper.
I. Background
ACM sued defendants to collect certain amounts owed
pursuant to two Commercial Loans executed between
Westernbank Puerto Rico (“Westernbank”) and Defendants.
Docket No. 1. ACM moved for summary judgment, Docket
No. 21. Rather than opposing the request, defendants sought
to reach a settlement. Docket No. 23. Should the settlement
efforts fail, defendants agreed to the entering of judgment. Id.
II. Standard
Summary judgment may be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ.
P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)(If a party “fails to make a showing sufficient to
establish the existence of an element essential to the party’s
case, and on which that party will bear the burden of proof at
ACM v. ITURREGUI-MARGARIDA
Page 3
trial,” summary judgment is proper.) The court must examine
the record in the light most favorable to the nonmovant and
indulging all reasonable inferences in the nonmovant’s favor.
Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.
1994).
In its review of the record, the court must refrain from
engaging in an assessment of credibility or weigh the
evidence presented. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 135 (2000)(“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Reeves, 530 U.S. at 150 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250–251 (1986)).
Finally, as this is a diversity case, the court is bound to
apply Puerto Rico law to all substantive matters. VázquezFilipetti v. Banco Popular, 504 F.3d 43, 48 (1st Cir. 2007).
III. Factual Findings
In accordance with Local Rule 56, the court credits only
facts properly supported by accurate record citations. See
ACM v. ITURREGUI-MARGARIDA
Page 4
Local Rule 56(e). The court has disregarded all conclusory
allegations, speculation, and improbable inferences disguised
as facts. See Forestier Fradera v. Municipality of Mayaguez, 440
F.3d 17, 21 (1st Cir.2006); Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). The following factual
findings are taken from the parties’
Statements of
Uncontested Material Facts, (“SUMF’s”), and supporting
documentation.
1. ACM is an exempt, for-profit corporation, organized
and existing under the laws of the Cayman Islands. ACM’s
offices are registered in Walkers Corporate Limited, Cayman
Corporate Centre, 27 Hospital Road, George Town, Grand
Cayman KY1-9008, Cayman Island. See, Docket No. 21-1, ¶ 2,
Unsworn Statement Under Penalty of Perjury of David W.
Silverstein, Vice President and Senior Asset Manager at
Capital Crossing Servicing Company, LLC, a service agent of
ACM.
2. The defendant Carlos Enrique Iturregui Margarida
(“Iturregui-Margarida”), is of legal age, single, and resident
ACM v. ITURREGUI-MARGARIDA
Page 5
of San Juan, Puerto Rico. Upon information and belief,
Iturregui-Margarida has mailing and residential addresses at
Condominio Palma Real, 2 Calle Madrid, Apartment 11-G,
San Juan P.R. 00929; Condominio Palma Real, 2 Calle Madrid,
Apartment 11-GH, San Juan P.R. 00929; and P.O. Box 29007,
San Juan P.R. 00929. See, Dkt. 1, ¶ 2, Complaint; Dkt. 13, ¶ 2,
Answer to Complaint.
3. The defendant Carmen Teresa Carlo Gorbea (“CarloGorbea”) is of legal age, single, and resident of San Juan,
Puerto Rico. Upon information and belief, Carlo-Gorbea has
mailing and residential addresses at Condominio Palma Real,
2 Calle Madrid, Apartment 11-G, San Juan P.R. 00929;
Condominio Palma Real, 2 Calle Madrid, Apartment 11-GH,
San Juan P.R. 00929; and P.O. Box 29007, San Juan P.R. 00929.
See, Dkt. 1, ¶ 3, Complaint; Dkt. 13, ¶ 3, Answer to
Complaint. 1
4. On December 17, 2005, Defendants executed a
1 Iturregui-Margarida and Carlo-Gorbea are hereinafter referred to,
collectively, as “Defendants.”
ACM v. ITURREGUI-MARGARIDA
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Commercial Loan Agreement, authenticated under affidavit
number 2,126 of Notary Public Juan Carlos Ortega Torres,
whereby
Westernbank
granted to
the Defendants a
commercial loan in the principal amount of SIX HUNDRED
FIFTY THOUSAND DOLLARS ($650,000.00), with interest at
a variable rate and maturity date on June 19, 2006 (the
“Original Loan Agreement”). See, Docket Nos. 1-1 and 8-1,
Original Loan Agreement and Certified Translation; and
Docket No. 13, ¶¶ 7 and 8, Answer to Complaint.
5. On December 5, 2007, Westernbank and the Defendants
executed
an
Addendum
to
the
Loan
Agreement,
authenticated under affidavit number 9,254 of Notary Public
Juan Carlos Ortega Torres, whereby (a) the principal amount
of the Original Loan Agreement was amended to the amount
of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00);
and (b) the maturity date was extended to July 31, 2008 (the
“First Amendment”). See, Docket Nos. 1-2 and 8-2, First
Amendment, and Certified Translation; and Docket No. 13,
¶¶ 10 and 11, Answer to Complaint.
ACM v. ITURREGUI-MARGARIDA
Page 7
6. On December 18, 2008, Westernbank and the
Defendants, executed a Commercial Loan Agreement
authenticated under affidavit number 9,004 of Notary Public
Esther Rebeca Luzón Colón, whereby Westernbank granted
to the Defendants a loan in the principal amount of FOUR
HUNDRED
THOUSAND
DOLLARS
($400,000.00)
to
refinance the Original Loan Agreement, as amended, with
interest at an annual rate of 6.50% for the first twenty four (24)
months and variable interest thereafter and maturity date on
December 18, 2013 (the “Loan Agreement I”). See, Docket Nos.
1-3 and 8-3, Loan Agreement I, and Certified Translation; and
Docket No. 13, ¶¶ 13 and 14, Answer to Complaint.
7. The amounts disbursed under the Loan Agreement I
are evidenced by a Promissory Note issued by the Defendants
on December 18, 2008, payable to Westernbank or its order,
endorsed to BPPR, thereafter endorsed to ACM, in the
principal amount of FOUR HUNDRED THOUSAND
DOLLARS ($400,000.00), authenticated under affidavit
number 9,005 of Notary Public Esther Rebeca Luzón Colón
ACM v. ITURREGUI-MARGARIDA
Page 8
(the “Promissory Note I”). See, Docket Nos. 1-4 and 8-4,
Promissory Note I, and Certified Translation; and Docket No.
13, ¶¶ 15 and 16, Answer to Complaint.
8. On December 27, 2013, BPPR and the Defendants
executed an Amendment to the Promissory Note I to extend
the maturity date and restructure the Loan Agreement I (the
“Amendment I-Promissory Note I”). See, Docket Nos. 1-5 and
8-5, Amendment I-Promissory Note I; and Certified
Translation; and Docket No. 13, ¶¶ 17 and 18, Answer to
Complaint.
9. On May 30, 2014, BPPR and the Defendants executed
an Amendment to the Promissory Note I to extend the
maturity date and restructure the Loan Agreement I (the
“Amendment II-Promissory Note I”). See, Docket. Nos. 1-6
and 8-6, Amendment II-Promissory Note I and Certified
Translation; and Docket No. 13, ¶¶ 19 and 20, Answer to
Complaint.
10. On December 19, 2005, Westernbank and the
Defendants executed a commercial loan in the principal
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Page 9
amount of FOUR HUNDRED THOUSAND DOLLARS
($400,000.00), with an annual interest rate of 6.00% and
maturity date on January 1, 2013 (the “Loan Agreement II”),
evidenced by a Promissory Note issued by Defendants on
December 19, 2005, payable to Westernbank or its order,
endorsed to BPPR, thereafter endorsed to ACM, in the
principal amount of FOUR HUNDRED THOUSAND
DOLLARS ($400,000.00), authenticated under affidavit
number 2,127 of Notary Public Juan Carlos Ortega Torres (the
“Promissory Note II”). See, Docket Nos. 1-7 and 8-7,
Promissory Note II and Certified Translation; and Docket No.
13, ¶¶ 22, 23 and 24, Answer to Complaint.
11. On January 11, 2013, BPPR and the Defendants
executed an Amendment to the Promissory Note II to extend
the maturity date and restructure the Loan Agreement II (the
“Amendment I-Promissory Note II”). See, Docket Nos. 1-8
and 8-8, Amendment I-Promissory Note II and Certified
Translation; and Docket No. 13, ¶¶ 25 and 26, Answer to
Complaint.
ACM v. ITURREGUI-MARGARIDA
Page 10
12. On July 3, 2013, BPPR and the Defendants executed an
Amendment to the Promissory Note II to extend the maturity
date
and
restructure
the
Loan
Agreement
II
(the
“Amendment II-Promissory Note II”). See, Docket Nos. 1-9
and 9-9, Amendment II-Promissory Note II, and Certified
Translation; and Docket No. 13, ¶¶ 27 and 28, Answer to
Complaint.
13. On December 27, 2013, BPPR and the Defendants
executed an Amendment to the Promissory Note II to extend
the maturity date and restructure the Loan Agreement II (the
“Amendment III-Promissory Note II”). See, Docket Nos. 1-10
and 8-10, Amendment III-Promissory Note II and Certified
Translation; and Docket No. 13, ¶¶ 29 and 30, Answer to
Complaint.
14. On May 30, 2014, BPPR and the Defendants executed
an Amendment to the Promissory Note II to extend the
maturity date and restructure the Loan Agreement II (the
“Amendment IV-Promissory Note II”). See, Docket Nos. 1-11
and 8-11, Amendment IV-Promissory Note II and Certified
ACM v. ITURREGUI-MARGARIDA
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Translation; and Docket No. 13, ¶¶ 31 and 32, Answer to
Complaint.
15. The Loan Agreements I and II are guaranteed by,
among others, the following mortgage notes:
(i) Mortgage note executed by the Defendants on
December 17, 2005, payable to Westernbank, or to its
order, endorsed to BPPR, thereafter endorsed to ACM, for
the principal amount of $650,000.00 authenticated under
affidavit number 2,124 of Notary Public Juan Carlos
Ortega Torres (the “Mortgage Note I”). See, Docket No. 112, Mortgage Note I; and Docket No. 13, ¶¶ 34 (i) and 35,
Answer to Complaint.
(ii) The Mortgage Note I is guaranteed by a mortgage
constituted through Deed Number 1037 executed in San
Juan, Puerto Rico on December 17, 2005 before Notary
Public Juan Carlos OrtegaTorres, recorded at: (a) page 11
of volume 1131, property number 21,608 of Santurce
Norte, Registry of Property of San Juan, First Section; and
(b) page 13 of volume 1131, property number 21,609 of
Santurce Norte, Registry of Property of San Juan, First
Section (the “Mortgage I”). See, Docket No. 1-13; and
Docket No. 13, ¶¶ 34(i) and 36, Answer to Complaint.
(iii) Mortgage I was modified through Deed of
Modification Number 292, executed in Mayaguez, Puerto
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Rico on December 18, 2008 before Notary Public Esther
Rebeca Luzón Colón, recorded in virtue of Act No. 216 of
December 27, 2010 in properties number 21,608 and
21,609, respectively (the “Modification I”). See, Docket No.
1-14, Modification I; and Docket No. 13, ¶¶ 34(i) and 37,
Answer to Complaint.
(iv) Mortgage note executed by the Defendants on
December 19, 2005, payable to Westernbank, or to its
order, thereafter endorsed to BPPR, thereafter endorsed to
ACM, for the principal amount of $400,000.00
authenticated under affidavit number 2,128 of Notary
Public Juan Carlos Ortega Torres (the “Mortgage Note
II”). See, Docket No. 1-15, Mortgage Note II; and Docket
No. 13, ¶¶ 34(ii) and 38, Answer to Complaint.
(v) The Mortgage Note II is guaranteed by a mortgage
constituted through Deed Number 1038 executed in San
Juan, Puerto Rico on December 19, 2005 before Notary
Public Juan Carlos Ortega Torres, recorded at: (a) page 11
of volume 1131, property number 21,608 of Santurce
Norte, Registry of Property of San Juan, First Section; and
(b) page 13 of volume 1131, property number 21,609 of
Santurce Norte, Registry of Property of San Juan, First
Section (the “Mortgage II”). See, Docket No. 1-16,
Mortgage II; and Docket No. 13, ¶¶ 34(ii) and 39, Answer
to Complaint.
ACM v. ITURREGUI-MARGARIDA
Page 13
16. ACM is at the present the owner and holder of the
Mortgage Notes I and II, the Promissory Notes I and II, as
amended, as well as all of the security for the Loan
Agreements I and II. See, Docket No. 21-2 ¶ 3, Sworn
Statement Under Penalty of Perjury of David W. Silverstein,
Vice President and Senior Asset Manager at Capital Crossing
Servicing Company, LLC, a service agent of ACM.
17.
Mortgage Notes I and II, through Mortgages I and
II, respectively, encumber the following properties (the
“Properties”), described as follows:
(i) Property I:
URBAN: APARTMENT 11-G: Apartment located in the
Northeast side of wing Northwest in the eleventh floor of
the residential section of Palma Real Condominium,
located between Ponce de Leon and Baldorioty de Castro
Avenues, and Madrid and Ensenada streets, in Miramar,
San Juan, Puerto Rico. Have a surface area of 1,497 square
feet, equivalent to 139.0 square meters. Bounded by the
Northwest, with apartment 11-H and northwest backyard
of the building, by the Northeast, with recreational
backyard of the building located in north side of the
building, by the East, with apartment 11-J and the north
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stairs (number 3) of the building, by the Southwest, with
apartment 11-H and the main hall of the northwest side,
through which it has entrance to the apartment, connected
this hall with the main corridor of that floor where are the
elevators and the stairs of the building that connect to the
another floors of the building and the principal entrance
of that residential section that give exit to Madrid Street.
This apartment contains, entrance vestibule with closet
with an area of 74 square feet, equivalent to 6.9 square
meters, living-dining room with 423 square feet,
equivalent to 39.3 square meters, balcony with 102 square
feet, equivalent to 9.5 square meters, kitchen with 108
square feet, equivalent to 10.0 square meters, interior hall
with 75 square feet, equivalent to 6.9 square meters,
bedroom number 1 with 146 square feet, equivalent to 13.6
square meters, closet in this room with 12 square feet,
equivalent to 1.1 square meters, bedroom number 2 with
146 square feet, equivalent to 13.6 square meters, closet in
this room with 12 square feet, equivalent to 1.1 square
meters, bathroom with 44 square feet, equivalent to 4.1
square meters, principal bedroom with 261 square feet,
equivalent to 24.2 square meters, closet in this bedroom
with 42 square feet, equivalent to 3.9 square meters,
bathroom in this room with 52 square feet, equivalent to
4.8 square meters.
Have a parking area in the basement of the building
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identified with number 11-G. Correspond a participation
in the Common elements of 0.789% and the total value of
the building 0.558%.
The property described above is recorded at page 83 of
volume 604 of Santurce Norte, property number 21,609
Registry of Property San Juan, First Section. See, Docket
No. 21- 3, Sworn Property Title Report of Property I; and
Docket No. 13, ¶ 42(i), Answer to Complaint.
(ii) Property II:
URBAN: APARTMENT 11-H: Apartment located in the
Northwest side in the eleventh floor of the residential
section of Palma Real Condominium, located between
Ponce de Leon and Baldorioty de Castro Avenues, and
Madrid and Ensenada streets, in Miramar, San Juan,
Puerto Rico. Having a surface area of 1,472 square feet,
equivalent to 136.7 square meters. Bounded by the
Northwest, with northwest backyard, by the Northeast,
with, recreational backyard of the building located in the
north of the building, with apartment 11-G and central
hall to the northwest side, by the Southwest, with yard of
the building that give access to the Ensenada Street, by the
Southeast, with apartment 11-G, the apartment 11-F and
with the central hall of the northeast side, through have
entrance the apartment, connected this hall with the main
corridor of that floor where are the elevator and the stairs
ACM v. ITURREGUI-MARGARIDA
Page 16
of the building that connect to the another floors of the
building and the principal entrance of that residential
section that give exit to Madrid Street.
This apartment contains, entrance vestibule with closet
with an area of 117 square feet, equivalent to 10.9 square
meters, living-dining room with 406 square feet,
equivalent to 37.7 square meters, balcony with 96 square
feet, equivalent to 8.9 square meters, kitchen with 101
square feet, equivalent to 9.4 square meters, interior hall
with 75 square feet, equivalent to 6.9 square meters, closet
in the hall with 10 square feet, equivalent to 0.9 square
meters, bedroom number 1 with 147 square feet,
equivalent to 13.7 square meters, closet in this room with
12 square feet, equivalent to 1.2 square meters, bedroom
number 2 with 145 square feet, equivalent to 13.4 square
meters, closet in this room with 12 square feet, equivalent
to 1.2 square meters, bathroom with 43 square feet,
equivalent to 4.0 square meters, principal bedroom with
212 square feet, equivalent to 19.7 square meters, closet in
this bedroom with 40 square feet, equivalent to 3.7 square
meters, bathroom in this room with 53 square feet,
equivalent to 4.9 square meters.
Having a parking area in the basement of the building
identified with number 11-H. Correspond a participation
in the Common elements of 0.806% and the total value of
the building 0.570%.
ACM v. ITURREGUI-MARGARIDA
Page 17
The property described above is recorded at page 173 of
volume 604 of Santurce Norte, property number 21,608
Registry of Property San Juan, First Section. See, Exhibit 4,
Sworn Property Title Report of Property II; and Docket
No. 13, ¶ 42(i), Answer to Complaint.
18. The Mortgage I, as amended, is duly registered at: (a)
page 13 of volume 1131, property number 21,609 of Santurce
Norte (Property I), Registry of Property of San Juan, First
Section; and (b) page 11 of volume 1131, property number
21,608 of Santurce Norte (Property II), Registry of Property of
San Juan, First Section. See, Exhibits 3 and 4, Sworn Property
Title Report of Properties I and II; Docket No. 13, ¶ 45, Answer
to Complaint.
19. Pursuant to the Mortgage I, it was agreed that the
amount of $325,000.00 would serve as the initial bidding
amount for Property I (in Spanish, “tipo mínimo”). See,
Docket No. 1, ¶ 46 ; Docket No. 13, ¶ 46, Answer to Complaint.
20. Pursuant to the Mortgage I, it was agreed that the
amount of $325,000.00 would serve as the initial bidding
ACM v. ITURREGUI-MARGARIDA
Page 18
amount for Property II (in Spanish, “tipo mínimo”). See,
Docket No. 1, ¶ 47 ; Docket No. 13, ¶ 47, Answer to Complaint.
21. The Mortgage II is duly registered at: (a) page 13 of
volume 1131, property number 21,609 of Santurce Norte
(Property I), Registry of Property of San Juan, First Section;
and (b) page 11 of volume 1131 of Santurce Norte (Property
II), Registry of Property of San Juan, First Section. See, Exhibits
3 and 4, Sworn Property Title Report of Properties I and II;
Docket No. 13, ¶ 48, Answer to Complaint.
22. Pursuant to the Mortgage II, it was agreed that the
amount of $200,000.00 would serve as the initial bidding
amount for Property I (in Spanish, “tipo mínimo”). See,
Docket No. 1, ¶ 49; Docket No. 13, ¶ 49, Answer to Complaint.
23. Pursuant to the Mortgage II, it was agreed that the
amount of $200,000.00 would serve as the initial bidding
amount for Property II (in Spanish, “tipo mínimo”). See,
Docket No. 1, ¶ 50; Docket No. 13, ¶ 50, Answer to Complaint.
24. ACM acquired the commercial loan agreements
(described below), with all their related collateral document
ACM v. ITURREGUI-MARGARIDA
Page 19
on June 17, 2016 from Banco Popular de Puerto Rico (“BPPR”)
who, in turn, had acquired the credit facilities from
Westernbank
Puerto
Rico
(“Westernbank”)
after
the
Commissioner of Financial Institutions of the Commonwealth
of Puerto Rico ordered the closure of Westernbank and the
sale of its assets on April 30, 2010, through the appointed
receiver the Federal Deposit Insurance Corporation (“FDIC”).
See, Docket No. 21-1 ¶ 3, Unsworn Statement Under Penalty
of Perjury of David W. Silverstein.
25. Defendants are the owners of the Properties according
to the Registry of Property and ACM’s best knowledge and
belief. See, Docket Nos. 21-4 and 21-5, Sworn Property Title
Report of Properties I and II.
26. On December 18, 2008, Defendants and Westernbank
executed a Pledge Agreement, authenticated under affidavit
number 9,003 of Notary Public Esther Rebeca Luzón Colón
(the “Pledge Agreement I”), whereby the Defendants
delivered to Westernbank, now ACM, as pledge the Mortgage
Note I. See, Docket No. 1-17, Pledge Agreement I; Docket No.
ACM v. ITURREGUI-MARGARIDA
Page 20
8-17.
27. Defendants have breached their obligations under the
Loan Agreements I and II as well as under the other loan
documents towards ACM by failing to make the agreed upon
payments. See, Docket No. 21-2, ¶¶ 8, 9, 10, 11, Unsworn
Statement Under Penalty of Perjury of David W. Silverstein;
Docket No. 1, ¶ 54; Docket No. 13, ¶ 54.
28. As of January 5, 2017, the Defendants owe ACM under
the Loan Agreement I the amount of $333,851.22 in principal;
interests in the amount of $37,994.11 which continues to
accrue until full payment of the debt at $44.05 per diem;
default interests in the amount of $13,893.95 which continues
to accrue until full payment of the debt at $18.55 per diem;
late charges in the amount of $301.51 which continues to
accrue until full payment; and any other advance, charge, fee
or disbursements made by ACM, on behalf of the Defendants,
in accordance with the Loan Agreement I, as well as under the
other loan documents, plus costs and agreed attorney’s fees
under the Mortgage Note I in the amount of $65,000.00. See,
ACM v. ITURREGUI-MARGARIDA
Page 21
Docket No. 21-2, ¶ 9, Unsworn Statement Under Penalty of
Perjury of David W. Silverstein, and Docket No. 21-6, Payoff
Balances of loans as of January 5, 2017.
29. As of January 5, 2017, the Defendants owe ACM under
the Loan Agreement II the amount of $342,268.91 in principal;
interests in the amount of $45,407.67 which continues to
accrue until full payment of the debt at $57.04 per diem;
default interests in the amount of $14,569.32 which continues
to accrue until full payment of the debt at $19.02 per diem;
late fees and any other advance, charge, fee or disbursements
made by ACM, on behalf of the Defendants, in accordance
with the Loan Agreement II, as well as under the other loan
documents, plus costs and agreed attorney’s fees under the
Mortgage Note II in the amount of $40,000.00. See, Docket No.
21-2, ¶ 10, Unsworn Statement Under Penalty of Perjury of
David W. Silverstein; and Docket No. 21-6, Payoff Balances of
loans as of January 5, 2017.
30. On June 24, 2016 and July 7, 2016, ACM sent Notices of
Default to Defendants, informing their failure to comply with
ACM v. ITURREGUI-MARGARIDA
Page 22
their payments as agreed in upon in the Loan Agreements I
and II, and to inform that said Loan Agreements had matured
and expired. Therefore, ACM declared that all the obligations
under the Loan Agreements I and II, were immediately and
automatically due and payable in full. See, Docket No. 1,
Exhibits 18 and 19 of Complaint, Docket Nos. 1-18 and 1-19,
Notice of Default; and Docket No. 13, ¶ 57, Answer to
Complaint.
31. The Defendants have not cured the default detailed
above. See, Docket No. 21-1 ¶ 11, Unsworn Statement Under
Penalty of Perjury of David W. Silverstein.
32. Defendants are not active in military service. See, Dkt.
1, ¶ 4, Complaint; Docket No. 13, ¶ 4, Answer to Complaint.
IV. Analysis
Given the uncontested facts listed above, it is evident that
no dispute of material fact exists as to defendants’
indebtedness. The parties entered into two binding loan
agreements pursuant to Article 1631 of the Puerto Rico’s Civil
Code, P.R. Laws Ann. tit. 31, § 4511. Plaintiff has attached all
ACM v. ITURREGUI-MARGARIDA
Page 23
the necessary documentation to establish that it is the secured
party of record for the Loan Agreements. Plaintiff has also
established that defendants failed to make payment as agreed
upon in the loan documents. As a result, ACM notified
defendants through a Notice of Default of their failure to
comply with their monthly payments. As of January 5, 2017,
defendants, jointly and severally, owe ACM a total of
$442,245.90 (principal, interest, default interest and legal
expenses), under Loan Agreement I, and $451,040.79
(principal, interest, default interest and legal expenses) under
Loan Agreement II. There is no evidence on the record that
defendants have made payments after that date or have cured
the default.
In view of the record before us, plaintiff is entitled to
receive from defendants the payment of the amounts owed,
and is entitled to foreclose on Properties I and II. In the
absence of full payment, plaintiff has the right to execute all
the collateral that secures defendants’ outstanding debt.
V. Conclusion
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Page 24
Because I find that plaintiff has successfully established
defendants are in default of their loan obligations, I grant
summary judgment in favor of plaintiff and order defendants
to pay the amount of $442,245.90 under Loan Agreement I,
and $451,040.79 under Loan Agreement II, plus interests that
may have accrued since January 5, 2017.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 24th day of July, 2017.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
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