Virginia Canales Rodriguez v. Banco Popular de Puerto Rico; Et al.

Opinion

THE DISTRICT OF PUERTO RICO 2

3 IN RE: CASE NO. 19-04671-MCF13 Chapter 13 VIRGINIA CANALES RODRIGUEZ 4

5 ADVERSARY NUMBER: 20-00138-MCF Debtor(s)

Plaintiff(s) 7

BANCO POPULAR DE PUERTO RICO; Et al. 8 Defendant(s) FILED & ENTERED ON NOV/27/2023 9

10 OPINION AND ORDER 11 Now before the Court is Plaintiff Virginia Canales Rodriguez’s Motion for 12 Leave to file Amended Complaint on Docket No. 183; with it, Plaintiff submitted 13 her proposed Second Amended Complaint. Defendant Banco Popular de Puerto Rico 14 (BPPR) filed its opposition on Docket No. 194. Plaintiff filed on Docket No. 15 206 a response to Defendant’s opposition to Plaintiff’s Motion for Leave to 16 file a Second Amended Complaint and Defendant filed on Docket No. 211 a sur- 17 reply to Plaintiff’s response. As explained below, Plaintiff’s motion for leave 18 to file a Second Amended Complaint is denied. 19 Plaintiff seeks leave to file an Amended Complaint to include First 20 American Title Insurance Company (First American Title) as a defendant and to 21 add three new counts: i) willful violation of the automatic stay pursuant to 11 22 U.S.C. § 362; ii) willful violation of the co-debtor automatic stay pursuant to 23 11 U.S.C. § 1301; and iii) violations of the Fair Debt Collection Practices Act 24 (FDCPA) by First American Title. Plaintiff contends that BPPR violated the 25 automatic stay by filing in the present adversary proceeding a cross-claim 26 requesting certain remedies against co-defendants members of the Sucesion 27 Barreto Garcia. Plaintiff further asserts that First American Title, as the 28 29 1 entity managing, paying, and coordinating BPPR’s Counsel in the above mentioned 2 cross-claim, violated the FDCPA. 3 As to counts one and two of the proposed Second Amended Complaint, the 4 automatic stay does not apply to proceedings in the bankruptcy court having 5 jurisdiction over the debtor. Section 362(b) of the Bankruptcy Code provides 6 limited exceptions to the applicability of the automatic stay. However, 7 “[t]here is a crucial exception to the automatic stay which is not included 8 under 11 U.S.C. § 362(b), namely; that "[a]ny action to recover property, to 9 collect money, to enforce a lien, or to assert a prepetition claim against the 10 debtor which would otherwise be enjoined by 11 U.S.C. § 362(a) if initiated in 11 any other context, is not subject to the automatic stay if commenced in the 12 bankruptcy court where the debtor's bankruptcy case is pending.”” Nat’l 13 Promoters & Servs. v. Multinational Life Ins. Co. (In re Nat’l Promoters & 14 Servs.), 220 Bankr. LEXIS 951 (Bankr. D.P.R. 2020)(citing In re Atreus 15 Enterprises, Ltd., 120 B.R. 341, 346 (Bankr. S.D.N.Y. 1990); citing In re 16 American Sports Innovations ASI, 105 Bankr. 614, 617 (Bankr. W.D. Wash. 1989)); 17 In re Vylene Enterprises, Inc., 63 Bankr. 900, 907 (Bankr. C.D. Cal. 1986); In 18 re American Spinning Mills, Inc., 43 Bankr. 365, 367 (Bankr. E.D. Pa. 1984). 19 Regarding count three of the proposed Second Amended Complaint, a 20 defendant to an FDCPA action must be a “debt collector” as defined by the act. 21 The FDCPA defines “debt collector” as "any person who uses any instrumentality 22 of interstate commerce or the mails in any business the principal purpose of 23 which is the collection of any debts, or who regularly collects or attempts to 24 collect, directly or indirectly, debts owed or due or asserted to be owed or 25 due another." 15 U.S.C. § 1692a(6). This court concludes that First American 26 Title Insurance Company, by paying BPPR’s Counsel in the above mentioned cross- 27 claim, is not a debt collector, pursuant 15 U.S.C. § 1692a(6). 28 29 1 For the reasons stated above, this Court finds that allowing Plaintiff to a Second Amended Complaint with the proposed amendments would be futile as such would result in undue prejudice, delay, and inefficiency in the 4|jJadjudication of the present case. Therefore, Plaintiff’s Motion for Leave to 5]|file Amended Complaint on Docket No. 183 is hereby denied. 7 In San Juan, Puerto Rico, this 27 day of November, 2023. 8 «

hole Mildred Caban Flores 11 United States Bankruptcy Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29