Noel Ruiz Soto and Carmen Y. Ortiz Reyes v. Universidad Interamericana de Puerto Rico, et als.

Opinion

1 UNITED STATES BANKRUPTCY COURT 5 DISTRICT OF PUERTO RICO

3 | INRE: 4 || NOEL RUIZ SOTO AND | CASE NUMBER 08-04983- ESL CARMEN Y. ORTIZ REYES 5 | CHAPTER 7 DEBTORS 6 ;| —— NOEL RUIZ SOTO AND 8 || CARMEN Y. ORTIZ REYES 9 || Plaintiffs 10 | ADVERSARY PROCEEDING NUMBER: Vs. | 08-172 11 | UNIVERSIDAD INTERAMERICANA D DE PUERTO RICO, et als. Defendants Byes 14 5 OPINION AND ORDER

16 This case is before the court upon the motion to dismiss filed by defendant Universidad 7 Interamericana de Puerto Rico (“Interamericana”) and the opposition thereto by plaintiffs. 8 Interamericana alleges that there has not been a violation of the automatic stay because there was no 19 clear intention or willful action. Interamericana further alleges that plaintiffs have not suffered any 50 damages. Plaintiffs allege that there is a violation of the automatic stay and, consequently, they are 5 entitled to be awarded damages. For the reasons stated below, the motion to dismiss is hereby denied. 22 53 At the outset, the court notes that on September 10, 2010 a decision and order was entered (Tester, B.K., Judge) grantingpplaintiffs’ motion for partial summary judgment; and concluding that 35 Interamericana had violated the automatic stay provisions of section 362(a), that the clerical error defense was inapposite, and that the pending issue was the extent of damages. This court will not 54 deviate from the dispositions by Judge Tester in his September 10, 2010 order. Collection actions 38 after the filing of a bankruptcy petition constitute a violation of the automatic stay and “computer errors” is not a defense.

1 -2- 3 || Standard for Granting a Motion to Dismiss 4 Motions to dismiss for failure to state a claim upon which relief may be granted are governed 5 || by Federal Rule of Civil Procedure 12(b)(6), which provides that a defense of “failure to state a 6 || claim upon which relief can be granted” to a claim for relief may be presented by motion before the 7 || filing of a responsive pleading. A motion to dismiss a counterclaim pursuant to Fed. R. Civ. P. 8 || 12(b)(6) is available to test a claim for relief in any pleading, including a defendant’s counterclaim. 9 | See 5B Wright & Miller, Federal Practice and Procedure: Civil 3d_ § 1356 at 368-369. 10 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 11 || as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 12 | 1949 173 L. Ed. 2d. 868 (2009) citing Bell Atlantic v. Twombly, 127 S. Ct. at 1974. Thus, a 13 | “complaint must plead facts ‘that raise a right to relief above the speculative level’” Dixon v. 14 | Shamrock Fin. Corp., 522 F. 3d 76, 79 (1* Cir, 2008); Cook v. Gates, 528 F. 3d 42, 48 (1* Cir. 15 || 2008); Gray v. Evercore Restructuring L.L.C., 544 F. 3d 320, 324 (1* Cir. 2008); Gagliardi v. 16 | Sullivan, 513 F. 3d 301, 305 (1* Cir. 2008); Perez Acevedo v. Rivero-Cubano at 29; Trans-Spec 17 || Truck Serv. v. Caterpillar Inc., 524 F. 3d 315, 320 (1* Cir. 2008); Citibank Global Markets, Inc. v. 18 || Rodriguez Santana, 573 F. 3d 17 (1* Cir. 2009). “Because a dismissal terminates an action at the 19 || earliest stages of the litigation, without a developed factual basis for decision, the court must 20 || carefully balance the rule of simplified civil pleading against the need for something more than 21 | conclusory allegations. Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F. 2d 22 || 962,971 (1% Cir. 1993). The court will not accept unsupported conclusions or interpretations of the 23 | law. Id. 24 Discussion 25 The debtor is entitled to a hearing on damages after a finding that there is a violation of the 26 || automatic stay. VAzques v. Doral, 647 F3d 367 (1* Cir 2011); Duby v. USA, 451 B.R. 664 (1* Cir 27 || BAP 2011); In re Rijos, 263 B.R. 382 (1* Cir. BAP 2001). Since defendant’s violation of the 28 || automatic stay was determined in the September 10, 2010 order, the complaint does establish a pnlausible cause of action for damages. Conseduently. the motion tn diemiee mict he denied

1 -3- 3 Conclusion 4 In view of the foregoing, Interamericana’s motion to dismiss is hereby denied. A trial on the 5 || extent of damages is hereby scheduled for beddrbhte leat ef :60ff,Seven (7) days prior to the 6 || hearing the parties shall submit proposed findings of fact and conclusions of law. Each finding of 7 || fact shall make reference to a document or a witness. If the reference is to a document, copy of the 8 || same shall be attached. 9 IT IS SO ORDERED. 10 Dated this ar, October, 2011, in San Juan, Puerto Rico. 11

“ HNRIQUE S. LAMOUTTE 14 U.S. Bankruptcy Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28