Federal Deposit Insurance v. Municipality of Ponce ex rel. Dapena Thompson

708 F. Supp. 464, 1989 U.S. Dist. LEXIS 2616
CourtDistrict Court, D. Puerto Rico
DecidedFebruary 28, 1989
DocketCiv. No. 87-1071 (JP)
StatusPublished
Cited by1 cases

This text of 708 F. Supp. 464 (Federal Deposit Insurance v. Municipality of Ponce ex rel. Dapena Thompson) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico 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. Municipality of Ponce ex rel. Dapena Thompson, 708 F. Supp. 464, 1989 U.S. Dist. LEXIS 2616 (prd 1989).

Opinion

OPINION AND ORDER

PIERAS, District Judge.

This is an action brought by the Federal Deposit Insurance Corporation (FDIC), in its corporate capacity, as successor of the Girod Trust Company (Girod), to collect on a loan guarantee executed by defendant Municipality of Ponce. The Municipality has moved for summary judgment on the grounds that the guarantee was made without legal authority and is void.

[465]*465I. Background,

On July 12, 1983, two agreements were executed by Girod Trust Company, Codfish Corporation, and the Municipality of Ponce, the first entitled “Loan Agreement” and the second “Open End Credit,” whereby Girod lent to Codfish $500,000.00 and $750,-000.00.respectively. Both instruments were signed by Erasto Rodriguez, on behalf of the Municipality, as guarantor.

Codfish’s “ship of rich lading wreck’d on the narrow seas;”1 it defaulted on the loans and eventually filed for bankruptcy. In the meantime, it was “never heard a passion so confus’d, so strange, outrageous, and so variable as [Girod] did utter in the streets. 'My daughter! O my ducats! O my daughter!’ ”2. Girod’s daughter ran off with its ducats, and it was declared insolvent and turned over to the FDIC as receiver. The loans at issue in this case were then sold to the FDIC in its corporate capacity.

Prior to the execution of the loan guarantees, the Municipal Assembly of Ponce had passed two ordinances in an effort to improve the city’s stagnant economy. The first, Ordinance No. 31 (series 1982-83), approved on September 24, 1982, authorized the creation of the “Ponce Capital Development Fund” and an “Office of Economic Development,” subsidiary entities of the Municipality without any separate legal capacity. The Fund was to be operated as a distinct account by an Administrator and funded by certain federal programs and by loans obtained by the Municipality for the purpose.3

Later, the Municipal Assembly enacted Ordinance No. 71 (series 1982-83), approved Feb. 18, 1983, which authorized the Mayor to issue loan guarantees to financial institutions, up to the sum of $10 million, whereby the financial institutions would extend loans to Ponce area businesses participating in the city’s economic development program. Although the ordinance’s first “Whereas” clause makes reference to the Ponce Capital Development Fund, the ordinance fails to state the source of the guarantee funds or to specifically limit them to Fund monies.

On May 12, 1983, Interim Mayor Mario Garcia Granados informed Girod by letter that “the Municipality of Ponce shall guarantee with its own funds, a credit line for One Million Dollars ($1,000,000) which was approved by you to CODFISH Corporation,” and on July 12, 1983, the loan guarantee was executed.

At the time the transaction was entered into, the Mayor of Ponce, José G. Tormos Vega, had appointed the Municipal School Director, Erasto Rodriguez, as Acting May- or. Tormos additionally signed a specific written but undated “Authorization” giving Rodriguez, as Acting Mayor, the authority to represent the Municipality in the transaction at issue. Rodriguez stated in his deposition that Tormos’ Secretary told him that Tormos had left instructions for him to be at the offices of Attorney Agustín Diaz Garcia to execute the guarantee, and that Diaz showed him the “Authorization” there. Diaz, counsel for the Municipality, served as the notary for both loan agreements.

Prior to his deposition, Rodriguez stated in an affidavit that he had no recollection of the “Authorization” signed by Tormos, but subsequent thereto he submitted another affidavit confirming his deposition testimony that he had seen the authorization prior to signing the loan guarantee agreements.

Defendant Municipality of Ponce, “sure the Duke will never grant this forfeiture to hold,” 4 contends that under the Municipal Law of Puerto Rico, the Municipality had no authority to guarantee the loans; and that, even if such power existed, the Munic[466]*466ipal Assembly did not authorize the guarantee at issue here. However, the Court, as the Duke, “cannot deny the course of law; For the commodity that strangers have with us in Venice, if it be denied, Will much impeach the justice of the state.”5 We find that the Municipality had the power, and properly exercised it, to guarantee the loans.

II. Authority of Municipality

Municipal governments in Puerto Rico, as elsewhere, are governments of limited power. They can exercise only those powers conferred by law. P.R. Const. Art. VI § 1; Rubert v. Treasurer, 58 P.R.R. 199, 210 (1941). Any contract entered into in violation of the Municipal law is ultra vires and void. 21 L.P.R.A. § 3451(a). The majority of the powers of municipalities were granted by the legislature in the Organic Act of the Municipalities, Act of June 18, 1980, No. 146, 21 L.P.R.A. § 2001 et seq.

In the 1980 act, municipalities were given “full legislative and administrative powers in any matter of a municipal nature.” 21 L.P.R.A. § 2051. They have “all the powers that are necessary and convenient to carry out all the duties pertinent to a local government,” Id. § 2054, including the powers “to develop general welfare programs,” § 2054(5); and “to exercise the legislative and administrative power in any matter of a municipal nature which is for the benefit of the population and its development and progress.” § 2054(16).

The Court is unaware of any judicial decisions concerning the power of Puerto Rico’s municipalities pursuant to these sections to guarantee loans, but the Secretary of Justice of Puerto Rico has spoken twice on the matter.

In his opinion of May 26, 1983, in response to a question about the legal validity of, specifically, the Ponce Capital Development Fund, the Secretary of Justice held that a municipality has the power “to grant or to guarantee loans with public funds to private entities which comply and contribute with the execution of [the ‘public purpose of promoting employment and spurring private economic activity in sectors of physical and economic decay of the City of Ponce.’]”

In both this opinion and an earlier one, Op.Sec.Just. No. 1976-3, which held under prior law that loan guarantees for the purpose of assisting citizens to purchase houses were not authorized, it was not the broad grant of authority which raised doubts — both opinions apparently concede the grant of sufficient power — but the limitation in Article VI § 9 of the Puerto Rico Constitution that “Public property and funds shall only be disposed of for public purposes, for the support and operation of state institutions, and pursuant to law.” The 1976 opinion held that guaranteeing loans to private individuals to construct housing did not constitute a sufficiently public purpose, while the 1983 opinion held that guaranteeing loans to business enterprises that would ease Ponce’s economic plight was a public purpose.

This Court agrees with the opinion of the Secretary of Justice both that the powers granted are broad enough to encompass loan guarantees to encourage municipal economic development and that the guarantees to private parties do not contravene P.R. Const. Art. VI § 9.

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708 F. Supp. 464, 1989 U.S. Dist. LEXIS 2616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-municipality-of-ponce-ex-rel-dapena-thompson-prd-1989.