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Case:13-00144-ESL Doc#:1 Filed:07/17/13 Entered:07/17/13 11:13:20 Desc: Main

Document Page 1 of 9

8104 (FORM 104) (08/07)

ADVERSARY PROCBEDING COVER SHEET

(Instructions on Reverse)

ADVERSARY PROCEEDING NUMBER
(Court Use C)nly)

PLAINTIFFS

Rosa Maria Aguiar Santana

ATTORNEYS (Firm Name, Address, and Telephone No.)
Roberto Figueroa Carrasquillo, Esq.
PO Box 0186 Caguas PR 00726-0186
7 87 -7 44-7 699 [email protected]
PARTY (Check One Box OnlY)
x Debtor
n Creditor r Other
r'Irustee
CAUSEOFACTION

I U.S. Trustee/Bankruptcy Admin

DEFIINDANTS
Oriental Bank (BBVA); Collection Agency A, B, C; Jos6
Ram6n Carrion Morales, Esq., Chapter 'l 3 Truster:

ATT0RNEYS (lf Known)
Angr:l M. VazquezBauza
PO llox 191017
San Juan PR 00919-1017
PAR'IY (Check One llox Only)
n Detrtor
il Creditor
q'l-rustee

r U.S. l'rustee/Bankruptcy Admin
I Other

Complaint seeking
statutory damages

(WRITE A BRIEF STATEMENT OF CATJSE OF ACTION, INCLUDING A LL t.l.S. SIATUTIIS INVOLVED)
turn over of property pursuant to 1 1 USC 542 and damages; also plaintiff request imposition ol
for violation of Fair Debt Practices Collection ,Act (FDCPA).

(Number up to five (5) boxes starting with lead cause ofaction as l, first alternative causo as 2, sccond altemative cause as 3, etc..f

NATURE OF'SUIT

F'RIIP 7001( l) - Recovcry of Money/Propertv

EI I l-R."ou"ry of money/property - 8542 tumovcr of property
n l2-R..on.ry ofmoney/propcrty - $547 prcf'crencc
n I 3-R."ou.ry of moncy/propcrty - 6548 fraudulont transfc,
!

l4-R..ou.ry ofmoncy/property - othcr

FRBP 7001(2) - Validity, I'riority or llxtent of Licn

I Zt -VutlOity, priority or cxtent of lien or other intercst in propcrty

FRBP 7001(3) - Approval of Salc of Property

! 3l-Approval ol-sale ofpropcrty ofcstate and ol'a co-owner - $363(h)

l.'RRP 7001(6) - Dischargcability (continucd)
! 61-Dischargeability - 8523(a)(5), domcstic suppor:
I 68-Dischargeability - Q523(a)(6), willful and mali<;rous inlury
! 63-Dir"hurg"ability - {i523(aX8), student loan
! 64-Dischurgeability - $523(aXl 5), divorce or scparation obligation

(othcr than domesttc suPPort)

fJ o5-D'sch",gcabtltty - ol.lter

IiRBP 7001(?) - Injunctive Rclitf
!
fl 7:l-lnjun,;tivc relicf'- othcr

7l -lnlunctive relief- imposition ol'stay

FRBP 7001(4) - Objection/Revocation of Dischargc
n qt-Objection / revocation ofdischarge - $727k),(d)'(cf

l'RllP 700t(8) Subordination ofClaim or Intcrest
fl 8l-Subo-dination of clzrtm or intcrcsl

FRBP 7001(5) - Revocation ofConfirmation
5 l-Reuocation of confirmation

!

FRIIP 7001(6) - DischargcabilitY

fl 66-Dischargeability - $523(aXl ),(14),(l4A) prioritv tax clarms
fl 62-Dischargeability - $523(a)(2), falsc pretens(:s, false reprcsentatton,

actual fraud

n 6z-Discharg"ability - $523(aX4), fraud as fidur:iary, embezlcmcnt, larceny

(continued next column)

n Check ifthis case involves a substantive issue ofstate law
c Check if a jury trial is demanded in complain'.
Other Relief Sought

I.'RBP 700 l(9) Dcclaratory Judgmcnt
fl 9l-Declaratory judgmcnt

FRBP 7001(ll0) I)etermination of Removed Action
n 0l -Delerrnination of rcmoved clatm or causc

Other
fl ss-stp,n, Case - I5 tJ li.C \\78aaa et seq.
n oz-Ottl., (e.g. orher actions that would have beer brought rn st,lte court

ifurLrelated to bankruPtcy case)

n Check il'this is asserted to be a class action under FR.CP 23
Demand $210,000.00

Case:13-00144-ESL Doc#:1 Filed:07/17/13 Entered:07/17/13 11:13:20 Desc: Main

Document Page 2 of 9

8104 (FORM 104) (08/07)' Page2

BANKRUPTCY CASE IN WHICH THIS ADVERSARY PROCEI]DING ARISES

NAME OF DEBTOR
Rosa Maria Aguiar Santana
DISTRICT IN WHICH CASE IS PENDING

BANKRUPTCY CASE NO.

13-04148 ESL

DIVISION OFI.'ICE

PLAINTIFF

DEFENDANT

RELATED ADVERSARY PROCEEDING (IF' AN'I')

NAME OF.IUDGE
Hon. Enrique S. Lanroutte

ADVERSAR\'
PROCI]EDING NO

DISTRICT IN WHICH ADVERSARY IS PENDING

DIVISION OFFICE

NAME OF JUDGE

STGNATURE OF ATTORNEY (OR PLAINTIFI'-)

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DATE

7t172013

PRIN'I NAME OF AT'|ORNEY (OR PLAINTIFF)

Roberto Figueroa Carrasquillo

INSTRUCTIONS

The filing ofa bankruptcy case creates an "estate" under thejurisdiction ofthe bankruptcy court which consists of

all of the property of the debtor, wherever that property is located. Because the bankruptcy cstate is so extensivc and the
jurisdiction of thi court so broad, there may be lawsuits over the properfy or property rights o1'the estate. There also may be
lawsuits concerning the debtor's discharge. lf such a lawsuit is filed in a bankruptcy court, it is called an zrdvel'sary
proceeding.

A party filing an adversary proceeding must also must complete and file Form 104, the Adversary Proceeding Cover

Sheet, unleis the party files the adversary proceeding electronically through the court's Case Management/Electronic Clase
Filing system (CM/EbF). (CM/ECF captures the information on Form tr 04 as part of the filing process.) When completed,
the civer sheet summarizes basic information on the adversary proceeding. The clerk of court needs the infonnation tcr
process the adversary proceeding and prepare required statistical reports on court activity.

The cover sheet and the infomration contained on it do not replace or supplement the filing and servic;e of pleadings
or other papers as required by law, the llankruptcy Rules, or the local rules of court. The cover sheet, which is' largely self-
explanatory, must be completed by the plaintiff s attorney (or by the plaintiff if the plaintiff is not represented by an
attorney). A separate covir sheet must be submitted to the clerk for each complaint filed.

plaintiffs and Defendants. Cive the names of the plaintiffs and defendants exactly as they appear on the complaint.

Attorneys. Give the names and addresses of the attomeys, if known'

party. Check the most appropriate box in the first column for the plaintiffs and the second oolumn for the def'endants.

Demand. Enter the dollar amount being demanded in the complaint'
Signature. This cover sheet must be signed by the attorney of record irr the box on the second page of the form. If the
pliintiffisrepresentedbyalawfirm,amemberofthefirmmustsign. Iftheplaintiffisprose,thatis,notrepresentedbyan
attomey, the plaintiff must sign.

Case:13-00144-ESL Doc#:1 Filed:07/17/13 Entered:07/17/13 11:13:20 Desc: Main

Document Page 3 of 9

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF PUERTO RICO

CASE NO 13.04148 ESL

CHAPTER 1 3

ADVERSARY NO.

IN RE:

ROSA MARIA AGUIAR SANTANA

DEBTOR

ROSA MARIA AGUIAR SANTANA

PLAINTIFF

VS

ORIENTAL BANK as successor of BANCO
BILBAO VIZCAYA ARGENTARIA;
COLLECTION AGENCY A,B,C;
JOSE RAMON CARRION MORALES, ESQ.
CHAPTER 13 TRUSTEE

DEFENDANTS

COMPLAINT SEEKING TURNOVER OF PROPERTY AND

SEEKING DAMAGES FOR VIOLATION OF THE FEDERAL DEBT COLLECTION

PRACTICES ACT (FDCPA)

TO THE HONORABLE COURT:

COMES NOW. ROSA MARIA AGUIAR SANTANA, plaintiff-debtor, in the above

captioned case, through the undersigned attorney, and very respectfully states and prays

as follows:

INTRODUCTION

This proceeding is brought by plaintiffto seek possession of an automobile in which
she has an interest and which is propedy of the estate and which is in the possession of

the defendant Oriental Bank. The Plaintiff/debtor also seeks statutory damages against
defendants for violation of the Federal Debt Collection Practices Act and damages for

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defendant's unfair and unconscionable collection means used against the plaintiff.

JURISDICTION

2. This Court has jurisdiction over this matter pursuant to 28 U.S.C, S1334 and 28

U.S.C. S157(b). This action is a core proceeding.

PARTIES

3. Plaintiff Rosa Maria Aguiar Santana ("Plaintiff') is the debtor in bankruptcy case

number 13-04148 ESL13.

4. Oriental Bank, as successor of Banco Bilbao Vizcaya Argentaria ("Oriental Bank")

is a creditor, in the above captioned bankruptcy case.

5. Colllection Agency A,B,C, is a fictitious name used to designate the collection

agency used by Oriental Bank to collect on the secured claim and repossess the Plaintiff's

automobile.

6. The Chapter 13 Trustee Jose Ramon Carrion Morales, Esq., is brought to this

proceeding as Trustee assigned to this case. This is an appropriate party to this action.

FACTS

7. On January 24,2013, Plaintiff's previous Chapter 13 bankruptcycase, 12-09003

ESL13. was dismissed.

8. The proposed Plan filed in the dismissed case, provided fror payment in full

(100%) through the Chapter 13 Trustee to secured creditor Oriental Bank, which creditor is

secured by a conditional sales lien on Plaintiff's automobile. a 2004 Kia Rio.

9. On March 11,2013, Plaintiff filed a motion requesting reconsideration of and to

set aside the above stated dismissal Order.

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10. On April 30,2013, the Bankruptcy Court for the District of Puerto Rico

J

scheduled a hearing for July 10, 2013, to consider, inter a/ia, the Plaintiff's motion for

reconsideration of the dismissal order entered in case 13-09003 ESL13.

11. On May 2,2013, Plaintiff received a telephone callfrom L. Martinez, a collector

and/or employee of defendant, at her home, who left her a message to call her back.

12. Since at the time of said telephone call Plaintiff was at her workplace, Plaintiff

was advised of the same and returned the call to said L. Martinez, who informed Plaintiff

that she was a "judicial and/or court officer" and that she was going to repossess the

Plaintiff's automobile, immediately, at her workplace.

13. Plaintiff informed Lillibeth Martinez that she was represented by counsel and that

she needed time to speak to her attorney.

14. On May 3, 2013, Plaintiff visited the offices of the undersigned attorney who

spoke to L. Martinez and informed her that the bankruptcy case 12-9003 ESL1 3 had been

dismissed that there was a motion for reconsideration or re-opening of the case pending

Court disposition, that a hearing had been scheduled for July 10,2013 and that she should

contact Oriental Bank's attorney.

15. On May 3, 2013, at 8:30 PM a larEe noisy pick-up truck with blinking headlights

stopped in front of Plaintiff's home. Plaintiff's sister opened the house door and there was

L, Martinez stating that she was there to repossess the automobile, that she was a'Judicial
or court officer" and could not wait until the Bankruptcy Court disposed of the

reconsideration of the dismissal order and that Plaintiff had to sign certain court papers that

were to be sent to the Chapter 13 Trustee.

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16. At 9:13 PM a towing truck appeared at Plaintiff's house and at 9:45 PM the

towing truck hitched the Plaintiff's automobile and left.

17. On May 22,2013,the Court granted Plaintiff s motion withdrawing the motion for

reconsideration of the dismissal order in bankruptcy case no.'12-09003 ESL13. Thus,

bankruptcy case no. 12-09003 ESL13, remains dismissed.

18. On May 22,2013, Plaintiff filed the above captioned Chapter 13 bankruptcy

case 1 3-04148 ESL13, and filed a proposed Chapter 13 Plan which provides for Oriental

Bank's secured claim to be paid in full (100%) through the Trustee.

1g. On May 22, 2013, Plaintiff called Ms. Vizcarrondo, an employee of defendant

Oriental Bank, seeking the turnover of the repossessed automobile. Ms Vizcarrondo
informed Plaintiff that on May 16, 2013, the repossessed autornobile had been

"transferred" at a cat auction held on May 6, 2013, that Oriental Bank did not have

possession of the repossessed automobile and therefore, could not "turnover" the property.

20. On July 12,2013, a search at the Public Transportation Department ("DTOP")

revealed that the 2OO4 Kia Rio had never been transferred and that the title of the

automobile appears under Plaintiff's name.
I.

FIRST CLAIM:
TURNOVER OF PROPERTY AND DAMAGES

21.The allegations of paragraphs'1-20 above are realleged and are incorporated

herein by reference.

22. PlaintiFf's automobile, which is prroperty of the estate as defined by 11 U.S.C.

Section 541, is in the possession of defendants.

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5

23. At the time her petition was filed, Plaintiff gave notice of the filing to defendant

Oriental Bank.

24. Upon receipt of this notice, defendant was required pursuant to 11 U.S.C.

Section 542, to turn over this property to the trustee in this case.

25. The Trustee has not acted to recover this property of the Plaintiff.

26. Under 1 1 U.S.C. Section 1306, Plaintiff is entitled to possessicln of all property of

the estate.

27. Plaintiff has offered to provide adequate protection for the interest of the

defendant and to make payment in full of defendant's claim through the Trustee.

28. Nonetheless, defendant has refused to turnover the property as required by 1 1

U.S.C. Section 542.

29. Wherefore, Plaintiff prays that this Court:

a. Order Defendant forthwith to turn over Plaintiff's automobile;

b. award Plaintiff, pursuant to 1 1 U.S.C. Section 105 (a) and 362(k) damages

in an amount of not less than $50,000.00, punitive damages in an amount of

$150,000.00, and an amount of $10,000.00 for costs and attorneys fees

pursuant to 11 U.S.C. $362(k);

(c) granting such other or further relief as is just and proper.

ll.

SECOND CLAIM: VIOLATION OF THE FEDERAL DEBT COLLECTION
PRACTICES ACT

30. The allegations of paragraph 1-20 above are realleged and incorporated herein

by reference.

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6

A. FOR CONTACTS AT UNUSUAL AND INCONVENIENT TIMES

31. Communications with Plaintiff made by defendants after 9:00 PM in connection

with the collection of any debt and/or repossession of property securing any debt are

prohibited and are defined as contacts at an "unusual time" or "inconvenient to the

consumer".

32. The contact made by defendant with the Plaintiff after 9:00 PM, is an act which

is prohibited by Federal law. 15 U.S.C. S1692c(a)(1).

33. Plaintiff seeks statutory damages against defendants under the Federal Debt

Collection Practices Act, 15 U.S.C. S1692k.

B. FOR CONTACTING A CONSUMER IT KNOWS TO BE REPRESENTED BY AN
ATTORNEY

34. Communications with Plaintiff made by defendants after being advised by

Plaintiff that she was represented by an attorney with respect to the debt being collected,
and that bankruptcy proceedings were pending before the Bankruptcy Court, are

prohibited.

35. The contact made by defendant with the Plaintiff at her house after 9:00 PM,

defendant knowing that Plaintiff is represented by an attorney, is an act which is prohibited

by Federal law. 15 U.S.C. $1692c(a)(2).

36. Plaintiff seeks statutory damages against defendants under the Federal Debt

Collection Practices Act, 15 U.S.C. S1692k.

C. FOR MAKING A FALSE REPRESENTATION THAT THE DEFENDANT IS A
..JUDICIAL OR COURT OFFICER" AND FALSELY IMPLYING THAT
DOCUMENTS ARE LEGAL PROCESS

37. The false representation made by L Martin ez, on behalf of defendant, to Plaintiff

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stating that she had the authority to repossess the Plaintiff's automobile because she was

a "judicial and/or court officer" is a false representation and a deceptive means to

I

repossess the debt collateral.

38. The use of any false representation or deceptive means to collect any debt is an

actwhich is prohibited by Federal law. 15 Lf .S. C.S1692e(10).

39. The false representation made by L Martinez, on behalf of defendant, to Plaintiff,

that she had to sign certain Court documents that were to be delivered to the Chapter 13

trustee, is a false representation and a deceptive means to repossess the debt collateral.

40. The use of any false representation or deceptive means to collect any debt is an

actwhich is prohibited by Federal law. 15 U.S. C.S1692e(13).

41. Plaintiff seeks statutory damages against defendants under the Federal Debt

Collection Practices Act, 15 U.S.C. S1692k.

WHEREFORE, Plaintiff respectfully' requests that this Court rSrant the present

complaint and order defendants to turnover the plaintiff's automobile artd pay plaintiff the

amounts requested herein, granting such and further relief as is appropriate.

RESPECTFULLY SUBMITTED.

ln San Juan, Puerto Rico, this 17th day of July, 2013.

/s/Roberto Figueroa Garrasquillo
R. FIGUEROA CARRASQUILLO LAW OFFICE PSC
ATTORNEY FOR PLAINTIFF
usDc 203614
PO BOX 186 CAGUAS PR 00726
TEL. 787-7 44-7 699 F AX 7 87 -7 46-5294
Email : rfig [email protected][.com