RUIZ SOTO et al v. UNIVERSIDAD INTERAMERICANA DE PR et al

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AUTHENTICATED /

U.S. GOVERNMENT
INFORMATION
GPO

N8-00172-ESL Doc#:90 Filed:10/03/11 Entered:10/03/11 14:32:44 Desc: Main
Document Page 1 of 3

UNITED STATES BANKRUPTCY COURT

DISTRICT OF PUERTO RICO
IN RE:
NOEL RUIZ SOTO AND CASE NUMBER 08-04983- ESL
CARMEN Y. ORTIZ REYES
CHAPTER 7

DEBTORS

NOEL RUIZ SOTO AND
CARMEN Y. ORTIZ REYES

Plaintiffs

ADVERSARY PROCEEDING NUMBER:
Vs.

08-172
UNIVERSIDAD INTERAMERICANA
DE PUERTO RICO, et als.
Defendants

OPINION AND ORDER

This case is before the court upon the motion to dismiss filed by defendant Universidad
Interamericana de Puerto Rico (“Interamericana”) and the opposition thereto by plaintiffs.
Interamericana alleges that there has not been a violation of the automatic stay because there was no
clear intention or willful action. Interamericana further alleges that plaintiffs have not suffered any
damages. Plaintiffs allege that there is a violation of the automatic stay and, consequently, they are
entitled to be awarded damages. For the reasons stated below, the motion to dismiss is hereby
denied.

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
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
deviate from the dispositions by Judge Tester in his September 10, 2010 order. Collection actions
after the filing of a bankruptcy petition constitute a violation of the automatic stay and “computer

errors” is not a defense.

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)8-00172-ESL Doc#:90 Filed:10/03/11 lEntered:10/03/11 14:32:44 Desc: Main
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Standard for Granting a Motion to Dismiss

Motions to dismiss for failure to state a claim upon which relief may be granted are governed
by Federal Rule of Civil Procedure 12(b)(6), which provides that a defense of “failure to state a
claim upon which relief can be granted” to a claim for relief may be presented by motion before the
filing of a responsive pleading. A motion to dismiss a counterclaim pursuant to Fed. R. Civ. P.
12(b)(6) is available to test a claim for relief in any pleading, including a defendant’s counterclaim.

See 5B Wright & Miller, Federal Practice and Procedure: Civil 3d_ § 1356 at 368-369.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 173 L. Ed. 2d. 868 (2009) citing Bell Atlantic v. Twombly, 127 S. Ct. at 1974. Thus, a

“complaint must plead facts ‘that raise a right to relief above the speculative level’” Dixon v.
Shamrock Fin. Corp., 522 F. 3d 76, 79 (1 Cir, 2008); Cook v. Gates, 528 F. 3d 42, 48 (1* Cir.
2008); Gray v. Evercore Restructuring L.L.C., 544 F. 3d 320, 324 (1* Cir. 2008); Gagliardi v.

Sullivan, 513 F. 3d 301, 305 (1* Cir. 2008);_Perez Acevedo v. Rivero-Cubano at 29; Trans-Spec

Truck Serv. v. Caterpillar Inc., 524 F. 3d 315, 320 (1* Cir. 2008); Citibank Global Markets, Inc. v.

Rodriguez Santana, 573 F. 3d 17 (1* Cir. 2009). “Because a dismissal terminates an action at the

earliest stages of the litigation, without a developed factual basis for decision, the court must
carefully balance the rule of simplified civil pleading against the need for something more than
conclusory allegations. Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F. 2d
962, 971 (1* Cir. 1993). The court will not accept unsupported conclusions or interpretations of the
law. Id.

Discussion

The debtor is entitled to a hearing on damages after a finding that there is a violation of the

automatic stay. Vazques v. Doral, 647 F3d 367 (1* Cir 2011); Duby v. USA, 451 B.R. 664 (1 Cir
BAP 2011); In re Rijos, 263 B.R. 382 (1* Cir. BAP 2001). Since defendant’s violation of the
automatic stay was determined in the September 10, 2010 order, the complaint does establish a

plausible cause of action for damages. Consequently, the motion to dismiss must be denied

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8-00172-ESL Doc#:90 Filed:10/03/11 lEntered:10/03/11 14:32:44 Desc: Main
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Conclusion
In view of the foregoing, Interamericana’s motion to dismiss is hereby denied. A trial on the
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extent of damages is hereby scheduled for eed teoe &, at .2/60f4.Seven (7) days prior to the

hearing the parties shall submit proposed findings of fact and conclusions of law. Each finding of

fact shall make reference to a document or a witness. If the reference is to a document, copy of the
same shall be attached.

IT IS SO ORDERED.

Dated this BF of October, 2011, in San Juan, Puerto Rico.

INRIQUE S. LAMOUTTE

U.S. Bankruptcy Judge