In re: Edil E. Quinones Velez and Ernestina Gonzalez Diaz v. Scotiabank de Puerto Rico; PR Acquisitions, LLC; Maza & Green; John Doe, XYZ Corporation

Opinion

1 IN THE UNITED STATES BANKRUPTCY COURT FOR 2 THE DISTRICT OF PUERTO RICO 3

4 IN RE:

5 EDIL E QUINONES VELEZ CASE NO. 09-06933 BKT 6 ERNESTINA GONZALEZ DIAZ CHAPTER 13

7 Debtor(s) ADVERSARY NO. 10-00152 EDIL E QUINONES VELEZ 8 ERNESTINA GONZALEZ DIAZ 9

10 Plaintiff

11 SCOTIABANK DE PUERTO RICO; PR FILED & ENTERED ON 06/13/2011 ACQUISITIONS, LLC; MAZA & 12 GREEN; 13 JOHN DOE, XYZ CORPORATION

14 Defendant(s) 15

16 DECISION AND ORDER 17 This proceeding is before the Court upon PR Acquisition LLC’s (“Movant’s”) Amended 18 19 Motion for Summary Judgment [Dkt. No. 34], Scotiabank’s (“Co-Movant’s”) motion to join the 20 Amended Motion for Summary Judgment [Dkt. No. 37], the Debtors’ Response to Amended Motion 21 for Summary Judgment [Dkt. No. 39], and the Movant’s Reply to Plaintiffs' Opposition To Amended 22 23 Motion For Summary Judgment [sic] [Dkt. No. 41]. For the reasons set forth below, the Movant’s 24 Amended Motion for Summary Judgment is hereby DENIED. 25 STATEMENT OF FACTS

On August 22, 2009, Edil Quinonez Vélez and Ernestina González Díaz (“Debtors”) filed a voluntary Chapter 13 petition. They allegedly received a letter seeking to collect a pre-petition debt 1 1 owed to the Movant and Co-Movant. On September 17, 2010, Debtors filed an adversary complaint 2 alleging that the collection letter violated the automatic stay provision under 11 U.S.C. § 362. 3 On January 13, 2011, the Movant filed a Motion for Summary Judgment (amended the same 4 5 day), and on January 24, 2011, Co-Movant motioned to join in that motion. Movant alleges that the 6 request for Debtors’ admission that no damages were suffered as a result of the violation is now 7 deemed admitted, since Debtors failed to respond to the Movant’s Request For Admissions within 8 9 the requisite thirty days. Debtors respond that the Court should permit withdrawal or amendment of 10 the alleged admission because (1) Debtors have engaged in settlement discussions with the Movant 11 12 during the relevant time period; (2) they have health issues which have been exacerbated by the 13 stress of the violation; and (3) allowing amendment or withdrawal would promote presentation of the 14 merits of the action pursuant to Fed. R. Civ. P. 36(b). 15 16 SUMMARY JUDGMENT STANDARD 17 Summary judgment is available if the pleadings, depositions, affidavits, answers to 18 interrogatories, and admissions show that there is no genuine issue as to any material fact and that 19 20 the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Borges v. Serrano- 21 Isern, 605 F.3d 1 (1st Cir. 2010). The moving party has the burden of proving that there is no 22 genuine issue of material fact. In re Rijos, 263 B.R. 382 (B.A.P. 1st Cir. 2001). A fact is deemed 23 24 "material" if it potentially could affect the outcome of the suit. Borges at 5. Fed. R. Civ. P. 56 is 25 made applicable to this adversary proceeding pursuant to Fed. R. Bankr. P. 7056.

2 1 LEGAL ANALYSIS AND DISCUSSION 2 The Court has the discretion to permit amendment or withdrawal of an admission. A matter 3 admitted under this rule is conclusively established unless the court, on motion, permits the 4 5 admission to be withdrawn or amended. Fed. R. Civ. P. 36(b). In determining whether or not to 6 permit withdrawal or amendment of a statement admitted by failure to respond to a request for 7 admissions, the court considers: (1) whether the presentation of the merits of the action will be 8 9 subserved thereby and (2) whether the party who obtained the admission will be prejudiced in 10 maintaining the action or defense on the merits if the admission is withdrawn. Farr Man & Co. v. 11 12 M/V Rozita, 903 F.2d 871, 876 (1st Cir. 1990). 13 As to the first factor, the Debtors in this action did not voluntarily admit that there were no 14 damages suffered as a result of the collection letter; in fact, their position is just the opposite. They 15 16 assert that this violation exacerbated their existing health problems. Therefore, the Court finds that 17 permitting withdrawal of the admission would facilitate resolution of the dispute on its merits, ie, 18 whether or not the Debtors suffered damages due to the alleged § 362 violation. The second factor 19 20 looks to “the difficulty a party may face in proving its case . . . because of the sudden need to obtain 21 evidence with respect to the questions previously answered by the admissions.” Brook Vill. N. 22 Assocs. v. Gen. Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982). The Movant has not alleged any such 23 24 difficulty in obtaining evidence necessary to establish the veracity of the alleged admission. Thus, 25 this Court finds that they would not be prejudiced by a withdrawal or amendment of the alleged

admission.

3 1 CONCLUSION 2 Because permitting the withdrawal of the admission will facilitate resolution of the disput 3 4 ||on the merits, and because the Movant has not alleged any substantial difficulty in obtainin || evidence necessary to prove the veracity of the admission, the Movant’s Motion for Summar 6 Judgment [Dkt. No. 34] is hereby DENIED. 7 8 SO ORDERED. 9 San Juan, Puerto Rico, this 13 day of June, 2011. 10 Am

Brian K. Tester 12 U.S. Bankruptcy Judge 13 14 15 16 17 18 19 20 21 22 23 24 25