Federal Deposit Insurance v. Francisco Investment Corp.

873 F.2d 474, 1989 WL 41750
CourtCourt of Appeals for the First Circuit
DecidedMay 1, 1989
DocketNos. 86-1717, 87-1029
StatusPublished
Cited by2 cases

This text of 873 F.2d 474 (Federal Deposit Insurance v. Francisco Investment Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance v. Francisco Investment Corp., 873 F.2d 474, 1989 WL 41750 (1st Cir. 1989).

Opinion

TORRUELLA, Circuit Judge.

These cases, related only coincidentally on the facts, come to us on appeal in very different postures. The first case hinges on whether the suit was barred by the applicable statute of limitations and whether the district court was clearly erroneous in determining that the debt had not been paid. The second requires us to determine whether the district court abused its discretion in refusing to set aside a default judgment. We address each case separately.

The judgment in the first case is affirmed, because the record, as developed before us, leaves no alternative. Because we find that the district court abused its discretion in not setting aside the default, we reverse the judgment in the second case.

I. The case of Francisco Investment

This appeal follows a one day bench trial, of which we have only a partial transcript. The issues before us are precisely those that required determination below and we have the benefit of a well articulated decision by the court and the documentary evidence presented by both sides. The issues before us are discrete and circumscribed, first, whether the action was barred under the applicable statute of limitations; second, whether the debt evidenced by the promissory note was in fact paid. We find no error in the court’s determination and affirm the judgment against appellant.

Background

Francisco Investment Corp. (“Francisco”) entered into a series of transactions with Banco de Economías y Préstamos (“the Bank”) for the purpose of acquiring a nursing home from Plan Permanente de Servic-ios Médicos Completos de Puerto Rico, Inc. (“Plan Permanente”). The Bank lent Francisco $200,000 in order for the latter to purchase the stock outstanding of the nursing home. A second transaction, the one that concerns us now, began as an assumption of an overdraft of Plan Permanente, for $283,812.21. The bank converted the assumed overdraft into a loan with Francisco as debtor, for the same amount, payable in 30 days, and guaranteed by Francisco Murcia Valcárcel (“Murcia”) and Miguel Oppenheimer Ortiz up to the amount of $460,000.. Not long thereafter, the bank found itself in serious financial difficulties. The Federal Deposit Insurance Corporation (FDIC), in an attempt to save the bank, acquired the notes in 1977.

Murcia, president of Francisco and personal guarantor of the debt, signed an acknowledgment of the debt on September 3, 1982. The acknowledgment was notarized, and states specifically that the loan “is due and payable in the principal amount of $283,718.631 plus interest in the amount of $185,787.10.” Several weeks thereafter, FDIC filed the instant suit to recover on the $283,812.21 loan.

The court found, for reasons we explain below, that the $283,000 loan was civil, not mercantile, and thus that the action by the [476]*476FDIC, begun in 1982, was brought within the 15-year statute of limitations. The court further found that the debt remained unpaid, and entered judgment accordingly, 638 F.Supp. 1216.

Appellants’ task before us is almost herculean, having to prevail against the strictures of Federal Rule of Civil Procedure 52(a) which provides that “[findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Discussion

The first issue is whether the suit was brought within the statute of limitations. The district court held that the suit was brought timely within the 15 year period provided for civil debts. Civil Code of Puerto Rico Article 1864, 31 L.P.R.A. § 5294 (1968). Appellant alleges that the debt is mercantile in character and thus a three year limitation applies. Commerce Code Article 946, 10 L.P.R.A. § 1908 (1976). But even if the debt is characterized as mercantile, the action still falls within the three year statute of limitations because the debt was reaffirmed in 1982, only weeks before the complaint was filed. Under the Commerce Code an acknowledgment of a debt begins anew the running of the statute of limitations, even after it expired. Commerce Code Article 941, 10 L.P.R.A. § 1903 (1976); Vázquez v. Freiría, 27 P.R.R. 764 (1919). Appellants explain that the acknowledgment was the result of coercion and misrepresentations on the part of FDIC, which held in its possession assets belonging to Murcia, and which represented to him that the acknowledgment would be only necessary until Murcia presented bank records that would prove that the debt had in fact been paid. The excuses proffered for signing the acknowledgment, as the district court found, simply ring hollow, and we see no basis to overturn the court’s findings. The action was therefore timely.

The remaining issue, namely, whether the debt was paid, hinged on the credibility of Murcia. FDIC held a note on a debt, on its face still outstanding. Francisco and the individual defendants had the full burden of proving extinction of the debt. 31 L.P.R.A. § 3261 (1968).

Murcia presented, besides his own testimony, some of the Bank’s records showing that another corporation he controlled, Lo-san, Inc. (“Losan”), had paid a debt of the same amount as the Francisco debt. Additional circumstantial evidence also succored his version: the Bank commenced an action against Francisco in March 1974; by November 1975 the action was voluntarily dismissed. Also in November 1975, Losan appears to have assumed a debt, for the amount of $283,812.21, payable in a year, with an interest rate of 12% — that is, exactly the terms of the loan to Francisco.

As to the crucial aspect of this issue, namely, the link between Losan’s transaction and that of Francisco, we are handicapped by the absence of the trial transcript. The trial judge found, however:

It is very difficult to imagine that if he indeed paid the loan, through whatever means, he did not keep accurate evidence of payment. The court could have looked at various documents that could evidence payment, to wit: (a) a complete accounting of the corporation’s accounts with the Bank (statements of account) as performed by the corporation’s accountants; (b) the recognition of the debt and the eventual cancellation in the corporation’s financial statements filed, as required by local law, annually at the Department of State and Treasury, and evidence from bank officials who could have shed light on the subject. This was not done. Defendants did not meet their burden.

638 F.Supp. at 1219 n. 3 (D.P.R.1986). There was no attempt by Francisco to present further evidence, newly discovered evidence, or to amend the findings under Rules 52, 59 or 60. In the peculiar stance of this case, we are left with no option but to affirm.

II. The case of Dr. Frederick González

The first transaction entered by Francisco for the acquisition of a nursing home [477]*477from Plan Permanente was effected through a multi-party contract executed on January 10, 1973. As part of this contract, the Bank lent Francisco $200,000 for a limited time period of 45 days. This loan was guaranteed by several individuals, including Dr. Frederick González (“González”).

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873 F.2d 474, 1989 WL 41750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-francisco-investment-corp-ca1-1989.