Case 3:11-cv PG Document 1 Filed 04/20/11 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Transcription

1 Case 3:11-cv PG Document 1 Filed 04/20/11 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MMB DEVELOPMENT GROUP, LTD., Plaintiff, Civil No. : v. HIMA-SAN PABLO PROPERTIES, INC. Defendant. PLAINTIFF S ORIGINAL COMPLAINT Plaintiff, MMB Development Group, Ltd, (hereinafter MMB ) files this Original Complaint against Defendant, HIMA San Pablo Properties, Inc., (hereinafter HIMA ) and would show as follows: I. PARTIES 1. Plaintiff MMB Development Group, Ltd. ( MMB ) is a Texas Limited Partnership organized and existing under the laws of the State of Texas with its principal place of business at 909 Fannin Street, Houston, Texas Defendant HIMA-San Pablo Properties, Inc. ( HIMA ) is a corporation authorized to do business in Puerto Rico with a principal place of business in Caguas, Puerto Rico. PLAINTIFF S ORIGINAL COMPLAINT Page 1

2 Case 3:11-cv PG Document 1 Filed 04/20/11 Page 2 of 6 II. JURISDICTION 3. The Court has subject matter jurisdiction over this action under 28 U.S.C. 1332(a)(1) because the citizenship of the Plaintiff differs from the citizenship of the Defendant and the amount in controversy exceeds $75,000 excluding interest and costs. 4. Venue is proper in this district under 28 U.S.C. 1391(a) because Defendant is a Puerto Rico corporation with a principal place of business in Puerto Rico, and a substantial part of the events or omissions giving rise to these claims arose here and the property that is a subject of this action is situated here. III. FACTS 5. On April 22, 2008, HIMA San Pablo Properties, Inc. entered into a Mortgage Note payable on demand in the amount of $17, 219, The Mortgage Note was signed by Joaquin Rodriguez Garcia, as the Chief Executive Officer of HIMA. The Mortgage Note is attached as Exhibit A and is fully made part of this Complaint. 6. In conjunction with the Mortgage Note and as security for it, HIMA entered into a Deed of Mortgage, dated April 22, The Deed of Mortgage created a mortgage in favor of the bearer of the Mortgage Note on the real properties described in the Deed of Mortgage. The Deed of Mortgage secured real property and improvements in the City of Caguas, Commonwealth of Puerto Rico (the Property ). The Deed of Mortgage is attached as Exhibit B and is fully made part of this Complaint. 7. At the same time, HIMA also entered into a Mortgage Note Pledge and Security Agreement in favor of MMB that provided additional rights and obligations from HIMA to MMB, including pledging the Mortgage Note and Deed of Mortgage as security for obligations PLAINTIFF S ORIGINAL COMPLAINT Page 2

3 Case 3:11-cv PG Document 1 Filed 04/20/11 Page 3 of 6 that HIMA owed to MMB. The Mortgage Note Pledge and Security Agreement is attached as Exhibit C and is fully made part of this Complaint. 8. MMB is the bearer of the Mortgage Note and the Deed of Mortgage and is entitled to exercise its rights under these security instruments. 9. MMB is the beneficiary of the Mortgage Note Pledge and Security Agreement. 10. MMB has demanded, and hereby demands, payment and HIMA has failed to pay all sums due and payable under the Mortgage Note, the Deed of Mortgage, and the Mortgage Note Pledge and Security Agreement. 11. As of the date of filing of this Complaint, HIMA is in default under the Mortgage Note, Deed of Mortgage, and Mortgage Note Pledge and Security Agreement. 12. All conditions precedent have been performed or occurred. IV. CAUSES OF ACTION as appropriate. 13. Plaintiff alleges the following causes of action collectively and in the alternative COUNT ONE: BREACH OF CONTRACT 14. Plaintiff incorporates by reference all preceding paragraphs. 15. MMB is the bearer of the Mortgage Note. 16. The Mortgage Note provides that HIMA shall pay the bearer $17,219, on demand together with interest from the date of execution until payment in full. PLAINTIFF S ORIGINAL COMPLAINT Page 3

4 Case 3:11-cv PG Document 1 Filed 04/20/11 Page 4 of MMB has demanded, and hereby demands, payment on the Mortgage Note from HIMA but HIMA has not paid any amounts due to MMB. 18. HIMA s failure to pay MMB on demand is a breach of the Mortgage Note and HIMA is in default. 19. The Mortgage Note and Deed of Mortgage are valid and legally enforceable contracts, which were duly executed, and which were entered into for valuable consideration. 20. As a direct and proximate result of HIMA s breach, MMB has suffered damages including the principal amount of $17,219, plus interest from the date of issuance of the Mortgage Note through the date of payment. To the extent that MMB is taking recourse of foreclosure and judicial proceedings to collect the amount due, HIMA owes MMB an additional 10% of the principal amount of the Mortgage Note as liquidated damages for the costs and expenses, including attorneys fees, of filing this action. COUNT TWO: FORECLOSURE OF MORTGAGE 21. Plaintiff incorporates by reference all preceding paragraphs. 22. MMB is the bearer of the Mortgage Note and Deed of Mortgage. 23. The Deed of Mortgage secured HIMA s obligations under the Mortgage Note. 24. According to the terms of the Deed of Mortgage, a default under the Mortgage Note is a default under the Deed of Mortgage. 25. Therefore Plaintiff MMB seeks foreclosure of the Deed of Mortgage and all relief it is entitled to therein. PLAINTIFF S ORIGINAL COMPLAINT Page 4

5 Case 3:11-cv PG Document 1 Filed 04/20/11 Page 5 of 6 VI. PRAYER 26. WHEREFORE, MMB requests judgment against HIMA for the following: a. A judgment that HIMA is in breach of the Mortgage Note, the Deed of Mortgage, and the Mortgage Note Pledge and Security Agreement; b. An award of compensatory damages to MMB in the total amount of the unpaid principal of the Loan, plus interest as set forth in the Mortgage Note; c. Liquidated damages as allowed by the Mortgage Note as reasonable compensation for attorneys fees and expenses; d. Post Judgment Interest as allowed by law; e. An order foreclosing the liens that MMB has against the Property; f. An order directing the sale of the Property at a public auction and the application of the proceeds from the sale to MMB s judgment; g. An order quieting title in the purchaser upon sale of the Property; h. All other relief, in law or equity, to which Plaintiff is entitled. Respectfully submitted. Dated: April 20, PLAINTIFF S ORIGINAL COMPLAINT Page 5

6 Case 3:11-cv PG Document 1 Filed 04/20/11 Page 6 of 6 CASELLAS ALCOVER & BURGOS, P.S.C. P.O. Box San Juan, PR TEL. (787) FAX (787) mpietrantoni@cabprlaw.com rcasellas@cabprlaw.com s/manuel A. Pietrantoni Manuel A. Pietrantoni USDC-PR No s/ricardo F. Casellas Ricardo F. Casellas USDCT No Of Counsel (pro hac vice applications to be filed)) Allan Diamond Attorney-in-Charge Texas State Bar No DIAMOND MCCARTHY LLP Two Houston Center, 15th Floor 909 Fannin St. Houston, Texas Telephone: (713) Facsimile: (713) Greg Taylor Texas State Bar No Jason Fulton Texas State Bar No DIAMOND MCCARTHY LLP 1201 Elm St, Suite 3400 Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEYS FOR PLAINTIFF PLAINTIFF S ORIGINAL COMPLAINT Page 6