FDIC v. Monterrey, Inc. ( 1995 )

USCA1 Opinion

          January 18, 1995      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT


                                 ____________________

        No. 94-1543

                        FEDERAL DEPOSIT INSURANCE CORPORATION,

                                 Plaintiff, Appellee,

                                          v.

                                   MONTERREY, INC.,

                               Defendants, Appellants.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Raymond L. Acosta, U.S. District Judge]
___________________

                                 ____________________

                                        Before

                               Torruella, Chief Judge,
___________

                           Campbell, Senior Circuit Judge,
____________________

                              and Boudin, Circuit Judges.
______________

                                 ____________________

            John M.  Garcia with  whom Garcia  & Fernandez  was  on brief  for
_______________            ___________________
        appellants.
            David A. Felt, Counsel,  with whom Colleen  B. Bombardier,  Senior
_____________                      ______________________
        Counsel,  Ann S.  Duross, Assistant  General Counsel,  Federal Deposit
______________
        Insurance  Corporation, and Gustavo  A. Gelpi  and Feldstein,  Gelpi &
_________________      ___________________
        Gotay were on brief for appellee.
_____

                                 ____________________


                                 ____________________


















                      Per Curiam.   Having heard oral  argument, and read
__________

            the parties' briefs and the record, we affirm the judgment of

            the district court.   We see no need to  add substantially to

            the rationale in the district court's opinion and order.  See
___

            Federal Deposit Ins.  Corp. v. Monterrey, Inc.,  847 F. Supp.
___________________________    _______________

            997 (D.P.R. 1994).

                      While,  on appeal,  appellants  still  contest  and

            struggle  to overcome the burden of D'Oench, Duhme & Co. Inc.
_________________________

            v. FDIC, 315 U.S.  447 (1942), the district court's  analysis
____

            of that issue is plainly correct.  See also FDIC v. Caporale,
________ ____    ________

            931 F.2d  1 91st Cir. 1991).   We find nothing  convincing in

            appellants'  arguments  based  on   the  purported  lack   of

            consideration to  Monterrey.  Monterrey was  not incorporated

            at the relevant time, and lack of consideration is unavailing

            for other reasons set out by appellee.  

                      Nor,  viewing the summary  judgment materials  in a

            light most favorable to plaintiff,  do we find anything  that

            could overcome  the presumption of liability  of the conjugal

            partnership.   Mr. Pou's alleged reservations  on this score,

            supposedly  made verbally to agents of the failed bank, could

            not accomplish this for present purposes.  While Mrs. Pou did

            not sign the  note, the conjugal  partnership was liable  for

            the  debts and obligations of either  of its members.  As one

            partner,  Mrs.  Pou stood  to benefit  from  use of  the loan

            proceeds  to reduce  her husband's  debt unless  it  could be



                                         -2-















            demonstrated, for some reason,  that that particular debt was

            beyond the  joint and  several liability of  the partnership.

            Evidence showing this is  lacking.  See FDIC v.  Perez Perez,
___ ____     ___________

            637  F.  Supp. 358  (D.P.R.  1986); WRC  Properties,  Inc. v.
______________________

            Santana,  16 Official  Translations of  the Supreme  Court of
_______

            P.R. 160 (1985).

                      Nor  is there reason to  treat the Mi Tacita stock,

            although  registered to Mr. Pou, as beyond the purview of the

            conjugal partnership.   No reason is suggested that the stock

            should be deemed  to belong  to Mr.  Pou exclusively,  rather

            than forming part of  the pool of assets within  the conjugal

            partnership and belonging to both spouses.  If so, the use of

            loan proceeds to pay Mi Tacita's debt and to whatever extent,

            enhance the value of its  stock, benefited both partners, not

            just Mr. Pou alone.

                      We  have considered appellants' other arguments and

            are satisfied that the judgment below was correctly rendered.

                      Affirmed.  Costs for appellee.
________

















                                         -3-