MENDEZ MORALES et al v. DORAL BANK et al

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF PUERTO RICO
IN RE: : CASE NO. 09-06663 (ESL)
:
LISANDRO MENDEZ MORALES :
JOHANA MORALES CABAN : CHAPTER 7
:
Debtors :
: ADVERSARY NO. 10-00063 (ESL)
LISANDRO MENDEZ MORALES :
JOHANA MORALES CABAN :
Plaintiffs :
:
vs. :
:
DORAL BANK; :
LUCAS P. VALDIVIESO GALIB, ESQ., :
PUERTO RICO TELEPHONE CO. :
Defendants :
____________________________________:
OPINION AND ORDER
Before this court is Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 40)
alleging that defendants Lucas P. Valdivieso Galib, Esq. (“Valdivieso”) and Doral Bank (“Doral”)
violated the automatic stay and the discharge injunction in Sections 362 and 524(a)(2) of the
Bankruptcy Code (Lead Case Docket No. 99-10119 ) and thus requesting a finding of liability for1
the alleged violations. Doral filed its Opposition thereto and a motion for summary judgment
(Docket Nos. 47 & 66) requesting the dismissal of the instant Complaint against it. Valdivieso has
not appeared or pleaded and no certificate of service of his summons appears from the record. For
the reasons stated herein Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 40) is granted
in part and denied in part and Doral’s cross motion for summary judgment (Docket Nos. 47 & 66)
is denied. The Court has no in personam jurisdiction over codefendant Valdivieso.
Procedural Background
Plaintiffs filed a voluntary Chapter 7 bankruptcy petition on August 13, 2009 (Lead Case No.
09-06663, Docket No. 1). In Schedule A (Real Property), they listed one real property located at 323
Kalimar Street #10, Urbanización Las Flores, Isabela, Puerto Rico (the “Real Property”) with a
References to the lead case are to the entries and documents filed in bankruptcy case no. 99-10119 (ESL)
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(the “Lead Case”).
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reported a value of $190,000 (without deducting any secured claim or exemption) and a secured
claim over it of $185,000 (Lead Case Docket No. 1, p. 20). In Schedule D (Secured Claims), they
listed Doral Bank as their only secured creditor (Lead Case Docket No. 1, p. 25). In Schedule C
(Exemptions), Plaintiffs claimed a $5,000 exemption over the Real Property under 11 U.S.C. §
522(d)(1) (Lead Case Docket No. 1, p. 24).
On November 25, 2009, Doral filed Proof of Claim No. 4-1 in the amount of $362,347.28,
claiming it as secured pursuant to a mortgage note over the Real Property. The court notes that the
mortgage note is for the principal amount of $185,000.00.
On January 19, 2010, the court granted the Discharge of Debtor (the “Discharge Order”,
Lead Case Docket No. 16). On March 18, 2010, the Chapter 7 Trustee (the “Trustee”) filed a Notice
of Abandonment of the Real Property (Lead Case Docket No. 20).
On April 14, 2010, the Plaintiffs filed the Complaint in the instant adversary proceeding
claiming that defendants wilfully violated the automatic stay and the discharge injunction.
On November 10, 2010, the Trustee filed a Report of No Distribution (Lead Case No. 25)
informing that there was no property available for distribution from the estate over and above that
exempted by law. The Trustee reported that the Assets Abandoned (without deducting any secured
claims) were $189,508.00, the Assets Exempted were $35,650.00, the Claims Scheduled were
$270,426.31, and the Claims scheduled to be discharged without payment (without deducting the
value of collateral or debts excepted from discharge) were $270,426.31.
After requesting and obtaining an extension of time to answer the complaint (Docket Nos. 6
& 7), on July 12, 2010, Doral filed its Answer to the Complaint (Docket No. 9) denying having
wilfully violated the automatic stay and the discharge injunction.
On June 1, 2011, Plaintiffs filed a Motion for Partial Summary Judgment (Docket No. 40)
alleging that on August 25, 2010, Doral filed in the Court of First Instance of Puerto Rico, Superior
Court of Aguadilla (“State Court”) a complaint to foreclose on their Real Property (Case No.
ACD2010-0212 (601)). Moreover, Plaintiffs aver that Doral continued its efforts to collect money
by obtaining a judgment against them on that case. As to Valdivieso, Plaintiffs claim that he mailed
a post-discharge standard computer-generated collection notice on February 10, 2010. In sum,
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Plaintiffs sustain that both defendants’ acts constitute a willful and deliberate violation of the
automatic stay and the discharge injunction under 11 U.S.C. §§ 362 and 524 and thus seek partial
judgment as to their liability.
On July 3, 2010, Doral filed its Opposition to Plaintiffs Motion for Partial Summary
Judgment [and] Motion for Summary Judgment (Docket No. 47). Doral admitted the facts in
Plaintiffs’ Motion for Partial Summary Judgment but with certain exceptions, namely: (1) its
Foreclosure Complaint did not seek to collect monies from Plaintiffs in addition to those guaranteed
by the Real Property; and (2) all its allegations and prayers therein were for an in rem judgment only
as to its secured loan. No documents were attached to its Opposition or its motion for summary
judgment.
On October 2, 2011, Plaintiffs filed a Reply to Doral’s Opposition to Plaintiffs’ Motion for
Partial Summary Judgment and their opposition to Doral’s motion for summary judgment (Docket
No. 64) averring that contrary to Doral’s allegations in its Opposition, in paragraph (d) of the prayer
for relief of its Foreclosure Complaint, Doral expressly requested the payment of the deficiency after
the sale of the Real Property and for the court to order the court’s marshal to seize and attach any
property of Plaintiffs, present or future, in payment of such deficiency.
On October 30, 2010, Doral filed a Motion Submitting Rebuttal Evidence to Plaintiffs’ Motion
for Summary Judgment (Docket No. 66) alleging that it had filed an Amended Complaint in the State
Court to carry out the foreclosure proceedings only in rem and subsequently the State Court entered
a judgment in Doral’s favor. On December 27, 2011, Plaintiffs filed a Response thereto (Docket No.
80) sustaining that the Amended Complaint does not meet the corrective defense available to creditors
who had notice of the filing and entry of the Discharge Order and did not take any steps to remedy
the violation as soon as practicable and that the foreclosure judgment against Plaintiffs still orders
them to pay with their present and future property.
Material Uncontested Facts
After considering the totality of the record, as well as the document and arguments presented
by the parties, the following material facts are uncontested:
1. Codefendant Valdivieso is or was a collection manager and/or attorney for
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codefendant Doral on or around February 11, 2010.
2. Dated February 11, 2010, but mailed on February 24, 2010, codefendant Valdivieso
issued a letter to Plaintiffs on Doral’s behalf informing them that their monthly
mortgage payments were past due since July, 1, 2009 and that the bank had referred
that matter to him to collect from them the arrears on the mortgage.
3. On August 25, 2010, Doral filed a Complaint with the Court of First Instance of
Puerto Rico, Superior Court of Aguadilla (Case No. ACD2010-0212 (601)), to
foreclose the Real Property (the “Foreclosure Complaint”) and to collect monies from
Plaintiffs, present and future, in excess of the recovered value, if any.
4. On September 7, 2010, Doral served Plaintiffs with the summons of the Foreclosure
Complaint.
5. On December 1, 2010, Doral filed with the state court a motion for leave to amended
the Foreclosure Complaint, with which they tendered an Amended Foreclosure
Complaint. In the motion for leave, Doral explained that foreclosure proceedings be
conducted only in rem and eliminated the request for collection of monies, present
and future, in excess of the recovered value of the Real Property, if any.
6. On May 23, 20111, the State Court, entered a foreclosure judgment in default against
Plaintiffs in Doral’s favor including Doral’s previous relief that the foreclosure
include the collection of monies, present and future, in excess of the recovered value
of the Real Property (the “Foreclosure Judgment”).
7. On September 19, 2011, Doral filed with State Court a motion for a foreclosure order
and a writ of execution.
Applicable Law & Analysis
(A) Partial Summary Judgment Standard
Fed. R. Civ. P. 56, applicable to this proceeding through Fed. R. Bankr. P. 7056, provides that
summary judgment should be entered “if the pleadings, depositions, answers to interrogatories, and
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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 a judgment as a matter of law.” Fed. R. Bankr.
P. 7056; see also, In re Colarusso, 382 F.3d 51, 58 (1 Cir. 2004), citing Celotex Corp. v. Catrett, 477st
U.S. 317, 322-23, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).
“The summary-judgment procedure authorized by Rule 56 is a method for promptly disposing
of actions in which there is no genuine issue as to any material fact or in which only a question of law
is involved.” 10A Wright, Miller & Kane, Federal Practice and Procedure: 3d § 2712 at 198. “Rule
56 provides the means by which a party may pierce the allegations in the pleadings and obtain relief
by introducing outside evidence showing that there are no fact issues that need to be tried.” Id. at
202-203. Summary judgment is not a substitute for a trial of disputed facts; the court may only
determine whether there are issues to be tried, and it is improper if the existence of a material fact is
uncertain. Id. at 205-206.
Summary judgment is warranted where, after adequate time for discovery and upon motion,
a party fails to make a showing to establish the existence of an element essential to its case and upon
which it carries the burden of proof at trial. Celotex, 477 U.S. at 322. The moving party must “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).
For there to be a “genuine” issue, facts which are supported by substantial evidence must be
in dispute thereby requiring deference to the finder of fact. Furthermore, the disputed facts must be
“material” or determinative of the outcome of the litigation. Hahn v. Sargent, 523 F.2d 461, 464 (1st
Cir. 1975), cert. denied, 425 U.S. 904 (1976). When considering a petition for summary judgment,
the court must view the evidence in the light most favorable to the nonmoving party. Poller v.
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Columbia Broadcasting Systems, Inc., 368 U.S. 464, 473 (1962); Daury v. Smith, 842 F.2d 9, 11 (1st
Cir. 1988).
The moving party invariably bears both the initial as well as the ultimate burden in
demonstrating its legal entitlement to summary judgment. Adickes v. Kress & Co., 398 U.S. 144,
157 (1970); see also, López v. Corporación Azucarera de Puerto Rico, 938 F.2d 1510, 1516 (1 Cir.st
1991). It is essential that the moving party explain its reasons for concluding that the record does not
contain any genuine issue of material fact in addition to making a showing of support for those claims
for which it bears the burden of trial. Bias v. Advantage International, Inc., 905 F.2d 1558, 1560-61
(D.C. Cir. 1990), cert. denied, 498 U.S. 958 (1990).
The moving party cannot prevail if any essential element of its claim or defense requires trial.
López, 938 F.2d at 1516. In addition, the moving party is required to demonstrate that there is an
absence of evidence supporting the nonmoving party’s case. Celotex, 477 U.S. at 325. See also
Prokey v. Watkins, 942 F.2d 67, 72 (1 Cir. 1991); Dairy, 842 F.2d at 11. In its opposition, thest
nonmoving party must show genuine issues of material facts precluding summary judgment; the
existence of some factual dispute does not defeat summary judgment. Kennedy v. Josepthal & Co.,
Inc., 814 F.2d 798, 804 (1 Cir. 1987). See also Kauffman v. Puerto Rico Telephone Co., 841 F.2dst
1169, 1172 (1st Cir. 1988); Hahn, 523 F.2d at 464. A party may not rely upon bare allegations to
create a factual dispute but is required to point to specific facts contained in affidavits, depositions
and other supporting documents which, if established at trial, could lead to a finding for the
nonmoving party. Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 818 (1 Cir.st
1980).
The moving party has the burden to establish that it is entitled to summary judgment; no
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defense is required where an insufficient showing is made. López, 938 F.2d at 1517. The nonmoving
party need only oppose a summary judgment motion once the moving party has met its burden.
Adickes, 398 U.S. at 159.
The court is required to view the pleadings in their entirety when passing a request for
summary judgment. 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2722
at 368. To do so, it may consider affidavits, depositions, admissions, answers to interrogatories and
similar material to determine whether or not any of the post-pleading material suggests the existence
of any other triable genuine issues of material fact. Id., § 2721 at 365-366.
Fed. R. Civ. P. 56 was extensively rewritten in 2010. See 10B Wright, Miller & Krane
Federal Practice & Procedure: Civil 3d § 2737. Amended subsection (a) of Fed. R. Civ. P. 56 now
includes express authority for judgment on less than the entire case denominating it in its subsection
title as “Partial Summary Judgment”, which allows summary judgment “upon all or any part” of a
claim or defense by any party.
In the instant case, upon admission by Doral of the essential, relevant material facts, summary
judgment is warranted.
2. Discharge of debts under 11 U.S.C. §§ 524 & 727
For most individuals, the primary purpose of filing in bankruptcy is to obtain discharge. See
William D. Warren & Daniel J. Bussel, Bankruptcy, Foundation Press, 8 Ed. 2009, p. 129. Theth
discharge is one of the fundamental in rem functions of the bankruptcy courts. See Central Virginia
Community College v. Katz, 546 U.S. 356, 363-364, 126 S. Ct. 990, 163 L. Ed. 2d 945 (2006). Its
principal purpose is to grant a “fresh start to the honest but unfortunate debtor.” Marrama v. Citizens
Bank, 549 U.S. 365, 367 (2007) (citations omitted). A bankruptcy discharge “releases” the debtor
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from liability on outstanding obligations with respect to any discharged debt. See Tenn. Student
Assistance Corp. v. Hood, 541 U.S. 440, 447, 124 S. Ct. 1905, 158 L. Ed. 2d 764 (2004). Also see;
William L. Norton, Jr. & William L. Norton III, Norton Bankruptcy Law and Practice, 3 Ed. § 58:1rd
(2012).
Section 727(a) of the Bankruptcy Code provides for the grant of a discharge to debtors;
Section 727(b) declares that the effect of a discharge is to free the debtor from all debts that arose
before bankruptcy. 11 U.S.C. §§ 727(a) and (b). Likewise, under 11 U.S.C. § 524(a)(2), a discharge
from bankruptcy operates as an injunction against in personam claims against a debtor. Parker v.
Handy (In re Handy), 624 F. 3d 19, 20-21 (1 Cir. 2010). Section 524(a)(2) of the Bankruptcy Codest
also ensures that the discharge will be completely effective and will operate as an injunction against
the commencement or continuation of an action or the employment of process to collect or recover
a debt as a personal liability of the debtor. 11 U.S.C. § 524(a)(2) “The discharge injunction that
arises upon the entry of a discharge order is perhaps the most important feature of the discharge.”
Fla. Dep’t of Revenue v. Díaz (In re Díaz), 647 F. 3d 1073, 1087 (11 Cir. 2011). It protects theth
debtor from a subsequent suit in a state court, or any other act to collect, by a creditor whose claim
had been discharged. Allan N. Resnick and Henry J. Sommer, 4 Collier on Bankruptcy, § 524.02
(16 Ed. 2011). The discharge injunction helps to ensure that the debtor’s “fresh start” is realizedth
by prohibiting creditors from attempting to collect discharged debts. See In re Jet Fla. Sys., Inc., 883
F.2d 970, 972 (11 Cir. 1989) as cited in Fla. Dep’t of Revenue v. Díaz (In re Díaz), 647 F. 3d atth
1085.
But not all debts are dischargeable. Section 524(a) of the Bankruptcy Code does not bar
creditors from enforcing valid, prebankruptcy liens or security interests against properties that have
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been retained by the estate or by the debtor after discharge. Any lien not invalidated or avoided
survives the debtor’s discharge. See Lee v. Yeutter, 917 F.2d 1104 (8 Cir. 1990) (discharge relievesth
debtor of personal obligation to repay debt but lien may remain on property); In re McNeil, 128 B.R.
603 (Bankr. E.D. Pa. 1991) (secured creditor need take no action during bankruptcy case to preserve
lien except to defend against an attempt to avoid the lien). Also see William L. Norton, Jr. & William
L. Norton III, Norton Bankruptcy Law and Practice, 3 Ed. § 58.4 (2012). Liens that surviverd
discharge include, among others, the in rem liability of mortgages. To that extent, the Code provides
that a creditor’s right to foreclose on a mortgage survives or passes through the bankruptcy because
a Chapter 7 discharge only extinguishes the in personam liability of the debtor, not the in rem
liability. See 11 U.S.C. § 522(c)(2); Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150,
2154, 115 L. Ed. 2d 66, 75 (1991) (“a bankruptcy discharge extinguishes only one mode of enforcing
a claim --namely, an action against the debtor in personam-- while leaving intact another --namely,
an action against the debtor in rem”). Ordinarily, “a [mortgage] creditor is not limited to foreclosure
on the mortgaged property should the debtor default on his obligation; rather, the creditor may in
addition sue to establish the debtor’s in personam liability for any deficiency on the debt and may
enforce any judgment against the debtor’s assets generally.” Id. at 84. A defaulting debtor can
protect himself from personal liability by obtaining a discharge in a Chapter 7 liquidation. See 11
U.S.C. § 727 and id. at 84. Moreover, “a secured creditor has a right to repossess its collateral if the
debtor fails to make payments.” Garske v. Arcadia Fin., Ltd. (In re Garske), 287 B.R. 537, 545
(B.A.P. 9 Cir. 2002).th
While a secured creditor may retain a lien on property of the debtor that could be enforced
by an in rem action, the creditor may not attempt to collect the debt as a personal liability by seeking
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money damages. In Martin v. Avco Fin. Servs. (In re Martin), 157 B.R. 268 (Bankr. W.D. Va. 1993),
the Court ruled that a creditor violated the discharge injunction by filing a suit in state court seeking
the value of collateral as an alternative relief to the return of its collateral after discharge. The court
reasoned that “...such actions cannot go further and attempt in any way to seek a deficiency judgment
and assert any ongoing personal liability of a debtor for such remaining unsecured claim resulting
from liquidation of collateral”. Id. at 274 (emphasis in original). Also see; Matter of Hunter, 970
F.2d 299, 310 (7 Cir. 1992); Green v. Welsh, 956 F.2d 30, 33-34 (2 Cir. 1992). The Martin courtth nd
further analyzed that “seeking and obtaining a judgment for the collateral’s alternate value ... is the
type of action to which [the] Debtor should not have to respond and which the Congress has sought
to avoid”. In re Martin, 157 B.R. at 275. “Such acts are part and parcel of the very behavior Congress
intended to prohibit, [and] are unequivocally proscribed by the broad injunctive provisions of §
524(a)(2)...” Id. at 275. “So long as the creditor is not collecting the debt as a ‘personal liability of
the debtor’, there is no violation under § 524(a)(2)”. Garske v. Arcadia Fin., Ltd. (In re Garske), 287
B.R. at 545 (citations omitted).
In the instant case, pursuant to 11 U.S.C. §§ 524(a)(2) & 727, Plaintiffs’ personal liability as
to the Real Property was discharged on January 19, 2010 (Lead Case Docket No. 16). Therefore,
Doral was automatically enjoined to file a foreclosure proceeding against Plaintiffs post-discharge
that sought personal liability for the deficiency of the value of the Real Property. The court finds that
Doral violated the discharge injunction when it filed a Foreclosure Complaint that expressly
requested in its prayer for relief Plaintiffs’ in personam liability in deficiency in value of the Real
Property, which culminated in a Foreclosure Judgment that imposed upon them personal liability.
The court takes into consideration that Doral filed an Amended Complaint with the State Court in an
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attempt to cure this issue, but the Foreclosure Judgment issued by the State Court did not.
3. Abandonment of the Real Property and automatic stay
“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy
laws. It gives the debtor a breathing spell from his creditors.” Grady v. A.H. Robins Co., 839 F.2d
198, 200 (4 Cir. 1988) (citations omitted). It also serves as an automatic injunction that halts actionsth
by creditors, with certain exceptions, to collect debts from a debtor who has filed for bankruptcy.
Under Section 362(a)(1) of the Bankruptcy Code, the stay begins at the moment the bankruptcy
petition is filed to prohibit the commencement or continuation of an action against a debtor to recover
a claim that arose prepetition. Section 362(c) establishes that an act against the property of the estate
is stayed until it is no longer part of the estate, but an act against the debtor --which is not an “act
against property of the estate”-- dissolves immediately upon the bankruptcy discharge order. Under
Section 362(c)(2), the automatic stay continues until the case is closed, dismissed or, in the case of
a Chapter 7 liquidation such as this one, until the individual receives a discharge or the discharge2
is denied. See Severo v. Comm’r, 586 F.3d 1213, 1216 (9 Cir. 2009).th
Section 554 of the Bankruptcy Code provides a mechanism by which the bankruptcy trustee
may abandon a property if it is not needed by the estate and its retention serves no purpose in
effectuating the goals of the Bankruptcy Code. Property may be abandoned if it is burdensome to
the estate or of inconsequential value and benefit to the estate. See 11 U.S.C. § 554(a).
Abandonment constitutes a divesture of all of the estate’s interests in the property. Property
abandoned reverts to the debtor and is no longer part of the estate, and the debtor’s rights to the
Only an individual may receive a discharge in a Chapter 7 case. See 11 U.S.C. § 727(a). W ith respect to
2
the other entities, the stay in a Chapter 7 expires when the case is closed or dismissed. See 11 U.S.C. 362(c)(2) and
Allan N. Resnick and Henry J. Sommer, 4 Collier on Bankruptcy, § 632.06[1] (15 Ed. 2011).	th
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property are treated as if no bankruptcy petition was filed. See Allan N. Resnick and Henry J.
Sommer, 4 Collier on Bankruptcy, § 554.02[3] (16 Ed. 2011), Catalan v. CIR, 279 F.3d 682, 685th
(9 Cir. 2002); In re St. Lawrence Corp., 239 B.R. 720, 723 (Bankr. D.N.J. 1999 aff’d, 248 B.R. 734th
(D.N.J. 2000)); Hopkins v. Idaho State Univ. Credit Union (In re Herter), 456 B.R. 455 (Bankr. D.
Idaho 2011). After a property is abandoned and outside of the estate, the automatic stay is no longer
applicable to it by operation of law. See In re Boland, 275 B.R. 675, 678 (Bankr.D.Conn. 2002); In
re Greene, 1999 U.S. Dist. LEXIS 14689 (E.D. Pa. 1999); and In re Beaudoin, 160 B.R. 25, 32
(Bankr. N.D.N.Y. 1993). In the instant case, the Real Property was abandoned by the Trustee on
March 18, 2010. See Lead Case Docket No. 20. Therefore, the automatic stay as to acts against
property of the estate ceased upon the abandonment of the Real Property. However, the automatic
stay would not have typically ceased in regards to prepetition claims against the debtor pursuant to
11 U.S.C. § 362(a)(1). The duration of the automatic stay as to any other act ceased on January 19,
2010 upon the entry of the Discharge Order pursuant to 11 U.S.C. § 362(c)(2)(c). Therefore, Doral’s
Foreclosure Complaint filed on August 25, 2010 did not violate the automatic stay.
3. In personam jurisdiction
To enter a valid judgment, a court must not only have jurisdiction over the subject matter, but
also ove r the parties. Only a court having jurisdiction over the person of the defendant may
enter a valid judgment imposing a liability or duty in favor of the plaintiff. In the
absence of jurisdiction over a defendant, any judgment or order the court might enter
against that defendant is null and void. See Farm Credit Bank of Baltimore v.
Ferrara-Goitia, 316 F.3d 62, 68 (1 Cir. 2002).st
Personal jurisdiction usually is obtained over a defendant by service of process. Jardines
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Bacata, Ltd. v. Diaz- Marquez, 878 F.2d 1555, 1559 (1st Cir. 1989) (explaining that “in the ordinary
course, the district court acquires jurisdiction over a defendant only by service of process”). A
defendant may, however, waive service --and waiver can form a valid basis for personal jurisdiction.
See Gen. Contr. & Trading Co. v. Interpole, Inc., 940 F.2d 20, 22 (1 Cir. 1991). Such a waiver mayst
be either express or implied. See Neirbo Co. v. Bethlehem Shipbldg. Corp., 308 U.S. 165, 168, 84
L. Ed. 167, 60 S. Ct. 153 (1939); Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 996 (1 Cir. 1983).st
In the instant case, the record shows no evidence of service of summons to co-defendant
Valdivieso or that he waived such service. Plaintiffs have not placed this court in a position to
acquire in personam jurisdiction over Valdivieso and thus the court is unable to make any
determination whatsoever whether he violated the automatic stay or the discharge injunction
provisions and the corresponding liability, if any.
Conclusion
In view of the foregoing, after considering all the arguments and pleadings, and based on the
uncontested facts, Plaintiffs Motion for Partial Summary Judgment (Docket No. 40) is granted in part
as to Doral’s violation of the discharge injunction but denied in regards to the violation of the
automatic stay. Doral’s Opposition and Motion to for Summary Judgment (Docket No. 47) are
denied. The Court lacks in personam jurisdiction over Valdivieso.
Partial summary judgment shall be entered accordingly.
SO ORDERED.
In San Juan, Puerto Rico, this 15 day of February, 2012.th
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Case:10-00063-ESL Doc#:84 Filed:02/15/12 Entered:02/16/12 09:34:48 Desc: Main
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