GONZALEZ GARCIA v. BANCO BILBAO VIZCAYA ARGENTARIA PUERTO RICO

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IN THE UNITED STATES BANKRUPTCY COURT FOR
THE DISTRICT OF PUERTO RICO
IN RE:
CARMEN ELENA GONZALEZ GARCIA
CASE NO. 09-03418 BKT
Debtor(s) 	CHAPTER 13
CARMEN ELENA GONZALEZ GARCIA
Plaintiff
V
ADVERSARY NO. 09-0143
BANCO BILBAO VIZCAYA
ARGENTARIA
FILED & ENTERED ON 09/27/2010
Defendant(s)
DECISION AND ORDER
This 	proceeding 	is 	before 	the 	Court 	upon 	the 	Defendant’s
motion 	for 	summary 	judgment 	[Dkt. 	No. 	37] 	and 	Plaintiff’s
opposition to summary judgment [Dkt. No. 40]. 	For the reasons set
forth 	below, 	the 	Defendant’s 	motion 	for 	summary 	judgment 	is
GRANTED.
I. FACTUAL BACKGROUND:
On April 30, 2009, the Debtor filed a voluntary petition under
Chapter 	13 	of 	the 	Bankruptcy 	Code. 	On 	July 	30, 	2009, 	the 	Debtor
filed 	the 	instant 	adversary 	proceeding 	alleging 	that 	Defendant
Banco Bilbao Vizcaya Argentaria Puerto Rico (BBVA) failed to redact
the 	Debtor’s 	personal 	and 	private 	data 	in 	violation 	of 	sections
105(a) and 107(c) of the Bankruptcy Code [Dkt. No. 1]. 	On August
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20, 	2010, 	the 	Defendant 	filed 	the 	instant 	motion 	for 	summary
judgment alleging that these sections do not create private causes
of action, and/or that the Plaintiff has failed to allege damages
as a result of any violations committed by the Defendant [Dkt. No.
37]. 	On September 17, 2010, the Plaintiff filed her opposition to
summary judgment [Dkt. No. 40].
II. SUMMARY JUDGMENT STANDARD:
Under Federal Rule of Civil Procedure 56(c), made applicable
in bankruptcy by Federal Rule of Bankruptcy Procedure 7056, summary
judgment 	is 	available 	if 	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); Borges ex rel. S.M.B.W. v.
Serrano-Isern, 	605 	F.3d 	1, 	4 	(1st 	Cir. 	2010). 	As 	to 	issues 	on
which the movant, at trial, would be compelled to carry the burden
of proof, it must identify those portions of the pleadings which it
believes 	demonstrates 	that 	there 	is 	no 	genuine 	issue 	of 	material
fact. 	In 	re 	Edgardo 	Ryan 	Rijos 	& 	Julia 	E. 	Cruz 	Nieves 	v. 	Banco
Bilbao Vizcaya & Citibank (In re Rijos), 263 B.R. 382, 388 (B.A.P.
1st 	Cir. 	2001). 	A 	fact 	is 	deemed 	"material" 	if 	it 	potentially
could affect the outcome of the suit. Borges at 5. 	Moreover, there
will 	only 	be 	a 	"genuine" 	or 	"trial 	worthy" 	issue 	as 	to 	such 	a
"material 	fact," 	"if 	a 	reasonable 	fact-finder, 	examining 	the
evidence and drawing all reasonable inferences helpful to the party
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resisting 	summary 	judgment, 	could 	resolve 	the 	dispute 	in 	that
party's favor." 	Id. at 4. 	The Court must view the evidence in a
light most favorable to the nonmoving party. 	Alt. Sys. Concepts,
Inc. v. Synopsys, Inc., 374 F.3d 23, 26 (1st Cir. 2004). Therefore,
summary judgment is “inappropriate if inferences are necessary for
the judgment and those inferences are not mandated by the record.”
Rijos at 388.
III. LEGAL ANALYSIS AND DISCUSSION:
The 	Plaintiff’s 	Amended 	Complaint, 	alleging 	violations 	of
sections 105(a) and 107(c) of the Bankruptcy Code, depends upon the
existence of a private cause of action under these sections. 	The
First 	Circuit 	has 	specifically 	held 	that 	section 	105 	does 	not
itself 	create 	a 	private 	cause 	of 	action, 	but 	a 	court 	may 	invoke
section 105(a) in equity if necessary to preserve a right provided
elsewhere 	in 	the 	Code. 	Noonan 	v. 	Secretary 	of 	Health 	and 	Human
Servs., 	124 	F.3d 	22, 	28 	(1st 	Cir. 	1997). 	Section 	107(c) 	also
creates 	rights 	enforceable 	only 	by 	the 	bankruptcy 	court, 	as
indicated 	by 	the 	text 	of 	the 	code 	itself: 	“The 	bankruptcy 	court,
for cause, may […].” 	11 U.S.C. § 107(c). 	Had congress intended to
create a private cause of action under this section, it could have
used the terminology in section 107(b): “On request of a party in
interest, the bankruptcy court shall, and on the bankruptcy court’s
own 	motion, 	the 	bankruptcy 	court 	may 	[…].” 	11 	U.S.C. 	§ 	107(b)
(emphasis added).
Thus neither section 105(a) nor 107(c) creates a private cause
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of action. 	However, according to the Court in Noonan, a litigant
may 	compel 	the 	Court 	to 	invoke 	section 	105(a) 	to 	protect 	a
substantive 	right 	provided 	elsewhere 	in 	the 	Code. 	The 	Plaintiff
may be able to compel this Court to impose sanctions under section
105(a) to preserve rights under section 107(c) if she can show that
the 	Defendant’s 	actions 	have 	violated 	her 	substantive 	rights
regarding 	the 	privacy 	of 	her 	personal 	information. 	The 	record
indicates 	that 	the 	Defendant 	in 	this 	proceeding 	has 	already
redacted 	the 	offending 	portions 	of 	its 	proof 	of 	claim, 	and 	the
Plaintiff 	has 	not 	alleged 	any 	actual 	damages 	accruing 	from 	the
Defendant’s temporary failure to redact her personal information.
Accordingly, 	the 	Plaintiff’s 	claim 	under 	section 	105(a) 	is 	not
necessary to preserve a substantive right to which she is entitled
under 	the 	code. 	If 	the 	Plaintiff 	can 	show 	that 	the 	personal
information 	disclosed 	by 	the 	Defendant 	actually 	caused 	her 	some
measurable amount of damages, then she may amend her complaint to
compel the Court to enforce section 105(a) to redress such damages.
Having determined (1) that the Plaintiff has no private cause
of action under section 107(c); (2) that the Court need not invoke
section 105(a) to protect the Plaintiff’s substantive rights under
the 	Code; 	and 	(3) 	that 	there 	are 	no 	other 	material 	facts 	in
dispute, 	this 	Court 	determines 	that 	the 	Defendant 	has 	met 	the
burden for summary judgment.
WHEREFORE, 	IT 	IS 	ORDERED 	that 	the 	Defendant’s 	motion 	for
summary judgment shall be, and it hereby is, GRANTED.
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Judgment will be entered accordingly.
SO ORDERED.
San Juan, Puerto Rico, this 27 day of September, 2010.
Brian K. Tester
U.S. Bankruptcy Judge
c: 	DEBTOR(S)
JUAN MANUEL SUAREZ COBO
LUIS F DEL VALLE
JOSE RAMON CARRION MORALES
BANCO BILBAO VIZCAYA ARGENTARIA
JAMES W MCCARTNEY
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