Opinion
CIVIL NO. 16-2025 (PAD)
02-13-2019
DLJ MORTGAGE CAPITAL, INC., Plaintiff, v. Daisy TRINIDAD-ALVAREZ, Defendant.
Giovanna P. Moreno-Lopez, Pradera del Rio 3267, Toa Alta, PR, Roberto C. Latimer-Valentin, Latimer, Biaggi, Rachid & Godreau LLP, Melissa Marchany-Carrasquillo, San Juan, PR, for Plaintiff DLJ Mortgage Capital Inc. Roberto C. Latimer-Valentin, Latimer, Biaggi, Rachid & Godreau LLP, San Juan, PR, for Plaintiff Lime Homes, LTD. Daisy Trinidad-Alvarez, Caguas, PR, pro se.
Giovanna P. Moreno-Lopez, Pradera del Rio 3267, Toa Alta, PR, Roberto C. Latimer-Valentin, Latimer, Biaggi, Rachid & Godreau LLP, Melissa Marchany-Carrasquillo, San Juan, PR, for Plaintiff DLJ Mortgage Capital Inc.
Roberto C. Latimer-Valentin, Latimer, Biaggi, Rachid & Godreau LLP, San Juan, PR, for Plaintiff Lime Homes, LTD.
Daisy Trinidad-Alvarez, Caguas, PR, pro se.
OPINION AND ORDER
Delgado-Hernández, District Judge. This is a foreclosure action brought by DLJ Mortgage Capital, Inc. ("DLJ") against Daisy Trinidad-Alvarez. Before the court is U.S. Bank's "Motion for Summary Judgment" (Docket No. 33). For the reasons explained below, the motion is GRANTED.
I. STANDARD OF REVIEW
Summary judgment is appropriate 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). The purpose of summary judgment is to pierce the pleadings and assess the proof in order to see whether there is need for trial. Mesnick v. General Electric Co., 950 F. 2d 816, 822 (1st Cir. 1991).
The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is "genuine" if it could be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is "material" if it potentially affects the outcome of the case in light of applicable law. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
As to issues on which the nonmovant has the burden of proof, the movant need do no more than aver absence of evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548 ; Mottolo v. Fireman's Fund Insurance, 43 F.3d 723, 725 (1st Cir. 1995). All reasonable factual inferences must be drawn in favor of the party against whom summary judgment is sought. Shafmaster v. United States, 707 F.3d. 130, 135 (1st Cir. 2013). Careful record review reflects absence of genuine dispute as to the facts identified in the section that follows.
II. STATEMENT OF FACTS
DLJ is a corporation with principal offices at 11 Madison Avenue, 4
Floor, New York, NY 10010-3629. Docket No. 1 ¶ 3. Defendant is a resident of the Commonwealth of Puerto Rico. Docket No. 1 ¶ 4. Her last known address is Physical Road 763, km. 6.0, Bo. Borinquen, Atrav, Caguas, P.R. 00725. Id. On January 28, 2000, she and Oscar Manuel Fonseca-González signed a mortgage note payable to J.T. Mortgage Corporation for $85,000.00 with interest at 10.50% per annum in monthly installments until the debt is paid in full. See, Docket No. 34, "Statement of Uncontested Facts in Support of Plaintiff's Motion for Summary Judgment," ("SUMF") at ¶ 1. The note provides for the payment of late charges in the amount of 5.0% of all monthly installments not received by the note holder within 15 days after the installment is due. SUMF ¶ 2.
On the same date, defendant and Fonseca-González executed mortgage Deed No. 23 to secure the repayment of (a) the indebtedness evidenced by the note, (b) an amount of 10% of the original principal amount of the note ($8,550.00) to cover costs, expenses and attorney's fees in the event of foreclosure or judicial collection, or collection in any proceeding in bankruptcy of the borrowers, (c) an amount of 10% of the original principal amount of the note ($8,550.00) to cover any advances made under the mortgage deed, and (d) an amount of 10% of the original principal amount of the note ($8,550.00) to cover interests in addition to those secured by law. SUMF ¶ 3-4. The mortgage encumbers a property located in Cayey, Puerto Rico, which is described in the Registry of Property in the Spanish language as follows:
RUSTICA: Parcela radicada en el Barrio Guavate del término municipal de Cayey, Puerto Rico, con una cabida superficial de una cuerda equivalente a tres mil novecientos treinta metros cuadrados con cuarenta centímetros cuadrados. En lindes por el NORTE y ESTE, en cincuenta y cuatro punto catorce metros (54.14 m.) y cincuenta y cuatro punto cuarenta y ocho metros (54.48 m.), respectivamente con la finca principal de la cual se segrega; por el SUR, en siete (7) alineaciones distintas que suman setenta punto veinte metros (70.20 m.), con un camino municipal; y por el OESTE, en noventa punto cero metros (90.00 m.) con terrenos de Santiago Villafañe.
The property is identified with the number 9,561 and is recorded at page number 259 of volume number 291 of Cayey, in the Registry of Property, First Section of Caguas, Puerto Rico. SUMF ¶ 6. The mortgage is recorded at page number 263 of volume number 291 of Cayey, eighth inscription. SUMF ¶ 7.
The note and mortgage deed were modified pursuant to Deed of Modification number 245 on October 31, 2012, in which the principal balance was increased to the amount of $106,143.80 with variable interests and the maturity date was extended to October 1, 2052. SUMF ¶ 8. The deed establishes that the debt under the loan bears interest at an annual rate of 5.375% until October 2017. After that date, the interest rate increases as follows: 6.375% from November 2017 until October 2018; 7.375% from November 2018 until October 2019, 8.375% from November 2019 until October 2020; 8.50% from November 2020 until maturity date. SUMF ¶ 11. The minimum bid was set at $106,143.80. SUMF ¶ 9. The parties agreed that the remaining clauses of the original note and mortgage deed would remain in effect. SUMF ¶ 13. The Deed of Modification is recorded at page 59 of volume 560 of the Registry of Property of Cayey, tenth inscription. SUMF ¶ 10. Defendant is the owner in fee simple of the abovementioned property, having acquired it by way of transfer from the liquidated Conjugal Partnership constituted with Fonseca-González, by virtue of Deed No. 1, executed on March 7, 2008 in Caguas, Puerto Rico, and recorded at page 59 of volume 560 of the Registry of Property of Cayey, ninth inscription. SUMF ¶ 14.
DLJ is now entitled to enforce the note. SUMF ¶ 16. Defendant did not comply with terms and conditions of the loan. The last payment she made under the mortgage note was due on July 1, 2014. SUMF ¶ 18. Since then, she has failed to pay any of the monthly installments. Id. It was stipulated in the note that default on payment of monthly installments and/or noncompliance with the terms, conditions, covenants and/or agreements included in the note and mortgage deed would authorize the holder to declare due and payable the total amount of the indebtedness evidenced by the note and proceed with execution and/or foreclosure of the mortgage. SUMF ¶ 17.
As of July 1, 2017, defendant owes DLJ $104,716.85 in principal, plus accrued interest at the annual interest rate of 5.375% per annum up until October 2017. SUMF ¶ 19. After that date, and as agreed by the parties, the interest rate increases as follows: 6.375% from November 2017 until October 2018; 7.375% from November 2018 until October 2019; 8.375% from November 2019 until October 2020; and 8.50% from November 2020 until maturity date. SUMF ¶ 19. Interests continue to accrue until the fulfillment of the debt. SUMF ¶ 20. Additionally, she owes late charges in the amount of 5.00% of each and any monthly installment not received by the note holder within 15 days after the installment was due (SUMF ¶ 21); 10.00% of the original principal amount ($8,550.00) for advances made under the mortgage note, including but not limited to insurance premiums, taxes, and inspections, as well as 10.00% of the original principal amount ($8,550.00) to cover costs, expenses, and attorney's fees guaranteed under the mortgage obligation (SUMF ¶ 22); and an additional 10% of the original principal amount ($8,550.00) to cover interests in addition to those secured by law. Id. From the information available, defendant is not presently in active military service of the United States armed forces, or a minor, and has not been declared incompetent by a court of law with authority to make such a determination. SUMF ¶ 24.
III. DISCUSSION
Under Puerto Rico law, which applies here, "obligations arising from contracts have legal force between the contracting parties and must be fulfilled in accordance with their stipulations." P.R. Laws Ann. tit. 31, § 2994. A mortgage is a "guarantee of a debt, which in turn is secured by a particular property." Bautista Cayman Asset Company v. Vilariño-Rodriguez, 2018 WL 6422731, at *3 (D.P.R. Dec. 5, 2018). "A mortgage creditor may seek foreclosure if the debtor defaults on the payment of any principal or interest due." CitiMortgage, Inc. v. Rivera-Anabitate, 39 F.Supp.3d 152, 154 (D.P.R. 2014).
It is undisputed that defendant failed to fulfill her payment obligation under the mortgage note. The note permits lender, upon defendant's default, to require immediate payment the full amount of principal not paid, as well as all the interest owed on that amount. Docket No. 34-1, p. 1. Further, the note entitles DLJ, as the note holder, to collect its costs and expenses to enforce the note, fixed at 10 percent of the original principal amount. Id. Thus, there is no genuine issue of material fact as to the obligation, default, and amount owed.
IV. CONCLUSION
In light of the foregoing, the motion for summary judgment is GRANTED. Accordingly, defendant is ordered to pay plaintiff the outstanding principal balance of $104.716.85 plus interest at a rate of 5.375% until October 2017, 6.375% from November 2017 until October 2018; 7.375% from November 2018 until October 2019; 8.375% from November 2019 until October 2020; and 8.50% from November 2020 until maturity date. The interest continues to accrue until the debt is paid in full. Defendant is further ordered to pay plaintiff accrued late charges and any other advance, charge, fee or disbursements made by plaintiff on behalf of defendant, in accordance with the mortgage deeds, plus costs, charges and disbursements, expenses and attorney's fees. Additionally:
1. In default of the payment of the sums hereinbefore specified or of any part thereof, within fourteen (14) days from the date of entry of this judgment, the mortgaged property described above shall be sold at public auction to the highest bidder therefor, without an appraisal or right of redemption for the payment of plaintiffs' mortgage within the limits secured thereby.
2. Upon plaintiff's compliance with Fed. R. Civ. P. 53, the court may appoint a Special Master to conduct the sale, but the Special Master shall not proceed to carry out the sale, or do anything in connection
with it, until further order by the court and under the form and conditions to be directed by the court.
3. The sale shall be subject to the confirmation of the court, and the purchaser or purchasers thereof shall be entitled to receive possession. The minimum bid to be accepted at the first public sale in accordance with the mortgage deed modification is $106,143.80.
4. Any funds derived from the sale to be made in accordance with the terms of this judgment and such further orders of the court shall be applied as follows:
a. To the payment of all proper expenses attendant upon said sale, including the expenses, outlays and compensation of the Special Master appointed herein, after the said compensation and expenses shall have been fixed and approved by the court, all said expenses to be deducted from the sum provided in the deed of mortgage for costs, charges and disbursements, expenses, and attorney's fees.
b. To the payment of all expenses or advances made by the plaintiff.
c. To the payment to plaintiff of the amounts due by defendant as of July 1, 2017, which amount to principal in the amount of $106, 143.80, plus interest which continues to accrue until full payment of the debt at the rate of 5.375% until October 2017, 6.375% from November 2017 until October 2018; 7.375% from November 2018 until October 2019; 8.375% from November 2019 until October 2020; and 8.50% from November 2020 until maturity date; accrued late charges and any other advance, charge, fee or disbursements made by plaintiff on behalf of defendant, in accordance with the mortgage deed, plus costs, and 10% of the mortgage note principal balance in costs, expenses, and attorney's fees.
d. If after making all the above payments there shall be a surplus, said surplus shall be delivered to the Clerk of this Court, subject to further orders of the court.
e. If after making all those payments there is a deficiency, plaintiff may seek further orders by the court to collect the deficiency from defendants.
Plaintiff may apply to the court for such further orders, as it may deem advisable to its interests to satisfy its money judgment, in accordance with its terms.