FirstBank Puerto Rico v. Mujica (In re Mujica)

492 B.R. 355
CourtDistrict Court, D. Puerto Rico
DecidedApril 9, 2013
DocketCivil No. 12-1413 (DRD); Bankruptcy No. 09-07655 (ESL); Adversary No. 10-00024
StatusPublished
Cited by4 cases

This text of 492 B.R. 355 (FirstBank Puerto Rico v. Mujica (In re Mujica)) 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
FirstBank Puerto Rico v. Mujica (In re Mujica), 492 B.R. 355 (prd 2013).

Opinion

AMENDED OPINION AND ORDER NUNC PRO TUNC

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court is an appeal filed by creditor-appellant FirstBank Puer-to Rico (hereinafter “FirstBank” or “Appellant”), against the debtor-appellee Nivea A. Pérez Mujica (hereinafter “Pérez” or “Debtor”), wherein FirstBank challenges the Opinion and Order of September 13, 2011, and the Judgment entered by the Hon. Enrique S. Lamoutte, in Adv. Proc. No. 10-00024(ESL), Docket entries No. 44 and 46, denying FirstBank’s request for reconsideration through the Opinion and Order of May 9, 2012, Adv. Proc. No. 10-00024 (ESL), Docket No. 50. The bankruptcy court denied FirstBank’s secured status of its claim. For the reasons set forth below, the instant appeal is dismissed.

Jurisdiction

This Court has jurisdiction to entertain bankruptcy appeals under 28 U.S.C. § 158(a)(1).

Standard of Review

On bankruptcy appeals, the district court reviews rulings of law de novo and findings of fact for clear error. Prebor v. Collins (In re I Don’t Trust) 143 F.3d 1, 3 (1st Cir.1998); Jeffrey v. Desmond, 70 F.3d 183, 185 (1st Cir.1995). “Under an [357]*357abuse of discretion standard, a reviewing court cannot reverse unless it has a ‘definite and firm conviction that the court below committed a clear error of judgment’ in the conclusion it reached upon a weighing of the relevant factors.” In re Hosseinpour-Esfahani, et al., 198 B.R. 574, 577 (9th Cir. BAP 1996), citing Marchand v. Mercy Medical Ctr., 22 F.3d 933, 936 (9th Cir.1994). “Evidentiary rulings by the bankruptcy court are subject to the ‘abuse of discretion’ standard.” Williamson v. Busconi, 87 F.3d 602, 603, n. 4 (1st Cir.1996), citing United States v. Cotto-Aponte, 30 F.3d 4, 6 (1st Cir.1994).

“The standard of review on this appeal requires that we respect, unless ‘clearly erroneous,’ all findings of fact by the bankruptcy court, which includes any finding of actual rebanee and any raw fact findings pertinent to the issue of justifiable reliance. Brandt v. Repco Printers & Litho-graphies, Inc., 132 F.3d 104, 107-08 (1st Cir.1997).” In re Spadoni, 316 F.3d 56, 58 (1st Cir.2003). “A court reviewing a decision of the bankruptcy court may not set aside findings of fact unless they are clearly erroneous, giving ‘due regard ... to the opportunity of the bankruptcy court to judge the credibility of the witnesses. (Citations omitted).” Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st Cir.1997).

“A finding of fact is clearly erroneous, although there is evidence to support it, when the reviewing court, after carefully examining all the evidence, is ‘left with the definite and firm conviction that a mistake has been committed.’ ” Palmacci, 121 F.3d at 785, citing Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “Deference to the bankruptcy court’s factual findings is particularly appropriate on the intent issue ‘[bjecause a determination concerning fraudulent intent depends largely upon an assessment of the credibility and demean- or of the debtor.’ ” Id. citing In re Burgess, 955 F.2d 134, 137 (1st Cir.1992). “Particular deference is also due to the trial court’s findings that depend on the credibility of other witnesses and on the weight to be accorded to such testimony.” Id. citing Fed.R.Bank.R. 8013; Keller v. United States, 38 F.3d 16, 25 (1st Cir.1994).

Moreover, when the parties do not contest the findings of fact made by the bankruptcy court, the appeals court will not disturb them. Soto-Rios v. Banco Popular, 662 F.3d 112 (1st Cir.2011); In re Joelson, 427 F.3d 700, 702 (1st Cir.2005) (“Because the parties do not specifically contest the bankruptcy court’s findings of fact, the court will not disturb this ruling on appeal”), citing Jenkins v. Hodes (In re Hodes), 287 B.R. 561, 570 (D.Kan.2002), aff'd, 402 F.3d 1005 (10th Cir.2005).

Issues

The issues before the Court are: (a) whether the bankruptcy court erred when finding that creditor FirstBank failed to meet the requirements of 11 U.S.C. § 362(b)(3), hence, the exception to the trustee’s avoiding powers under 11 U.S.C. §§ 544(a) and 546(b)(1)(a) are not applicable; and, (2) whether the bankruptcy court erred by finding that “the mechanism which FirstBank will have to employ to correct the lack of successive tract for parcel # 1714, is to correct the errors notified by the Property Registrar for deed # 21 and to present to the Property Registry an amended or new deed pursuant to Article 72 of the Puerto Rico Mortgage Law. Once this amended or new deed has been presented to the Property Registry the principle of prior tempore potior iure will apply, meaning first in time is preferred in right, thus this amended or new deed will be registered at a subsequent date than the mortgage deed since the same was presented to the Property Registry at a later time in conformity with [358]*358Article 53 of the Puerto Rico Mortgage Law.”1 Appellant’s Brief on Appeal, Docket No. 11.

Factual and Procedural Background

The facts are uncontested, hence, the Court will adopt the findings of fact made by the bankruptcy court. See Opinion and Order of September 8, 2011, Docket No. 12-1413, pages 18-23.

On September 12, 2009, plaintiff Nivea V. Pérez Mujica filed for voluntary relief under Chapter 13 of the Bankruptcy Code under Bankruptcy Case No. 09-07655 (ESL). Ms. Pérez listed in Schedule A— Real Property, her 50% interest in a piece of realty where her residence is located:

'% interest over residence located at Bo. Jiménez, Road 967 Km. 7.8, Rio Grande, PR 00745. Description: 3 bedrooms, 2 bathrooms, living room, dining room & kitchen. Bought in 2004 at price of $130,000.00. Debtor has not been able to register her title.

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Bluebook (online)
492 B.R. 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/firstbank-puerto-rico-v-mujica-in-re-mujica-prd-2013.