CitiMortgage, Inc. v. Gonzalez-Benejan et al, No. 3:2011cv01644 - Document 71 (D.P.R. 2014)

Court Description: MEMORANDUM AND OPINION granting 66 Motion for Summary Judgment. Signed by US Magistrate Judge Silvia Carreno-Coll on 9/8/2014.(NBB)

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IN THE UNITED STATES COURT FOR THE DISTRICT OF PUERTO RICO CITIMORTGAGE, INC., Plaintiff, v. CIV. NO.: 11-1644(SCC) ROSA CRUZ GONZÃ LEZBENEJAN, Defendant. MEMORANDUM AND ORDER In this foreclosure action, Plaintiff CitiMortgage, Inc., has filed a motion for summary judgment. Docket No. 66. For the reasons stated below, I grant that motion. I. Background1 On July 31, 2007, Defendant Rosa Cruz GonzÃ¡lez-Benejan, 1. The facts below come from CitiMortgage s statement of uncontested material facts. See Docket No. 66, at 7 9. GonzÃ¡lez has failed to oppose CitiMortgage s statement of facts, which is therefore deemed admitted as a whole. CITIMORTGAGE v. GONZALEZ-BENEJAN Page 2 along with her now-deceased husband, subscribed a mortgage note payable to Plaintiff CitiMortgage. The mortgage s principal was $107, 391.25, with an interest rate of 6.50% per year, due on August 1, 2037. To secure the payment of the principal and interest, GonzÃ¡lez also executed a mortgage on property number 8,179, recorded at page 1, volume 303, of the Moca Property Registry, San Sebastian Section.2 GonzÃ¡lez is the owner of that property in fee simple. Though CitiMortgage has given GonzÃ¡lez various opportunities to satisfy the amounts owed, including a modification of the original mortgage, GonzÃ¡lez is currently under default and owes the full principal, interest, and attorneys fees.3 II. Analysis There is no doubt as to the validity of the mortgage executed by GonzÃ¡lez, nor is there any doubt as to her obligations thereunder. It is moreover undisputed that GonzÃ¡lez has not met her obligations under the mortgage. Under such circumstances, Puerto Rico law provides that the object of the 2. The Spanish-language description of the property can be found in the mortgage deed. See Docket No. 66, at 41. 3. Specifically, GonzÃ¡lez owes $107,391.25 in principal, plus interest and late charges, as well as $11,165 in liquidated attorneys fees. CITIMORTGAGE v. GONZALEZ-BENEJAN Page 3 mortgage may be alienated to pay the creditor. P.R. LAWS ANN. tit. 31, § 5002. GonzÃ¡lez opposes CitiMortgage s motion, but she does so solely based on what she says is CitiMortgage s failure to disprove her counterclaim. GonzÃ¡lez s opposition thus confuses the parties relevant burdens. CitiMortgage moved, as it is entitled to do, for summary judgment on its own complaint. To that end, it proposed uncontested facts. It was GonzÃ¡lez s responsibility at that point to show that there were issues of material facts that made summary judgment on CitiMortgage s claims impossible; she also could have chosen to seek summary judgment on her own counterclaim. However, GonzÃ¡lez did none of these things. By failing to file a counterstatement of material facts, she admitted, for summary judgment purposes, the facts that CitiMortgage proposed. It hardly need be said that factual allegations in a counterclaim cannot defeat a properly supported motion for summary judgment. GonzÃ¡lez, in her answer to the complaint, made seven affirmative defenses, which she re-alleged as a counterclaim. It is these defenses that she argues CitiMortgage needed to preemptively refute to win on summary judgment. See, e.g., CITIMORTGAGE v. GONZALEZ-BENEJAN Page 4 Docket No. 69, at 5. However, a summary judgment movant need not preemptively tackle all of [the non-movant s] affirmative defenses. Frerck v. Pearson Educ., Inc., Civ. No. 115319, F. Supp. 2d , 2014 WL 3906466, at *2 (N.D. Ill. Aug. 11, 2014); see also, e.g., Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320 F.3d 1354, 1366 67 (Fed. Cir. 2003) (holding that a party asserting an affirmative defense must raise it in response to a motion for summary judgment (emphasis added)); United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 478 (D.C. Cir. 1993) (same); United Cent. Bank v. Wells Street Apartments, LLC, 957 F. Supp. 2d 978, 987 88 (E.D. Wis. 2013) (rejecting, in a foreclosure case, the argument that plaintiff had to disprove the defendant s affirmative defenses in its motion for summary judgment).4 Thus, not only did CitiMortgage need not preemptively refute GonzÃ¡lez s counterclaims, GonzÃ¡lez waived those counterclaims by not properly asserting them in her response to the motion for summary judgment. 4. But see Amwest Surety Ins. Co. v. Szabo, Civ. No. 00-2716, 2001 WL 1230643, at *4 (N.D. Ill. Oct. 11, 2001) ( [A] moving party cannot simply ignore an affirmative defense; it must initially demonstrate the lack of a genuine issue of material fact as to that defense. ); Navistar Int l Transp. Corp. v. Freightliner Corp., Civ. No. 96-6922, 1998 WL 786388, at *1 2 (N.D. Ill. Nov. 6, 1998) (similar). CITIMORTGAGE v. GONZALEZ-BENEJAN Page 5 See United States v. Mottolo, 26 F.3d 261, 263 (1st Cir. 1994) ( At summary judgment on the issue of liability, unproffered affirmative defenses to liability are deemed abandoned. (citing Pittston Co., 984 F.2d at 478)).5 For that reason, and because I grant summary judgment in favor of CitiMortgage, I must also dismiss GonzÃ¡lez s counterclaim, which is based on the waived affirmative defenses. After all, if foreclosure is proper, GonzÃ¡lez cannot recover for the alleged impropriety of the foreclosure. III. Conclusion Based on the established facts, this Court has no choice but to enter summary judgment in CitiMortgage s favor. It s motion is GRANTED and judgment will follow. CitiMortgage is authorized to commence foreclosure proceedings pursuant or the applicable provisions of Puerto Rico s mortgage law, and it is authorized to carry out a public sale of the property described in the Complaint. IT IS SO ORDERED. 5. But see Am. Nat l Fire Ins. Co. v. York Cnty., 582 F. Supp. 2d 69, 78 n.3 (D. Me. 2008) (holding that Mottolo does not require a court find that affirmative defenses preserved in a defendant s answer but not raised in objecting to summary judgment are categorically waived to the extent the case survives summary judgment (emphasis added)). CITIMORTGAGE v. GONZALEZ-BENEJAN Page 6 In San Juan, Puerto Rico, this 8th day of September, 2014. S/ SILVIA CARREÃ O-COLL UNITED STATES MAGISTRATE JUDGE

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