United States Court of Appeals

For the First Circuit

No. 20-1681

BAUTISTA CAYMAN ASSET COMPANY,

Plaintiff, Appellee,

v.

FOUNTAINEBLEU PLAZA, S.E.; EDWIN ANTONIO LOUBRIEL ORTIZ, 

Defendants, Appellants,

SEDCORP, INC.,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Kayatta, Lipez, and Barron,

Circuit Judges.

Juan R. Dávila-Díaz for appellants.

Carolina Velaz-Rivero, with whom Mauricio O. Muñiz-Luciano, 

Hans E. Riefkohl-Hernández, and Marini Pietrantoni Muñiz LLC were 

on brief, for appellee.

May 27, 2021
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KAYATTA, Circuit Judge. In March of 2017, Bautista 

Cayman Asset Company brought an action for collection of monies 

and foreclosure of collateral against Fountainebleu Plaza, S.E.,

Edwin Loubriel Ortiz, and Sedcorp, Inc. The district court later 

granted summary judgment in Bautista's favor. Fountainebleu and 

Loubriel timely appealed. They contend that the district court 

did not have subject-matter jurisdiction over the case, and that, 

even if it did, genuine disputes of material fact precluded the 

district court from granting summary judgment. After carefully 

considering on de novo review the record and briefs on appeal, as 

well as oral argument by counsel, we vacate and remand for the 

sole purpose of better determining the amount due.

As to the district court's subject-matter jurisdiction, 

Fountainebleu and Loubriel argue that a clause in the parties' 

loan agreement -- the agreement at the core of the case -- was a 

mandatory forum selection clause, requiring that the case be 

litigated in Puerto Rico state court. That clause provides that, 

"[i]n the event of any litigation that arises in connection with 

this contract, with the Loan, or with the other documents connected 

hereto, the parties submit to the jurisdiction of the General Court 

of Justice of Puerto Rico." For substantially the reasons offered 

by the district court in its opinion denying the defendants' motion 

to dismiss for lack of subject-matter jurisdiction, Bautista 

Cayman Asset Co. v. Fountainebleu Plaza, S.E., No. 3:17-cv-01383-
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JAG (D.P.R. Jan. 19, 2018), ECF No. 33, we conclude that the clause 

did not deprive the district court of subject-matter jurisdiction. 

We have previously read similar provisions as "an 

affirmative conferral of personal jurisdiction by consent, and not 

a negative exclusion of jurisdiction in other courts." Autoridad 

de Energía Eléctrica de P.R. v. Ericsson Inc., 201 F.3d 15, 18–19 

(1st Cir. 2000) (citing Redondo Constr. Corp. v. Banco Exterior de 

España, S.A., 11 F.3d 3, 6 (1st Cir. 1993)). Fountainebleu and 

Loubriel direct us to Summit Packaging Systems, Inc. v. Kenyon & 

Kenyon, 273 F.3d 9 (1st Cir. 2001), but that case only bolsters 

our reading of the clause. There, we held mandatory a clause 

providing that, in the event of a certain dispute, "you agree that 

the dispute will be submitted to arbitration . . . or . . .

submitted to the Courts of the State of New York." Id. at 11. 

When parties, such as those in Summit Packaging, "agree that they 

'will submit' their dispute to a specified forum, they do so to 

the exclusion of all other forums." Id. at 13. This sort of 

agreement stands "[i]n contrast to" mutual assent to a particular 

court's "jurisdictional authority." Id. Where, as here, the 

parties agree only to submit themselves to the jurisdiction of a 

particular court, they do not do so to the exclusion of all others. 

Moving past subject-matter jurisdiction, Fountainebleu 

and Loubriel argue that genuine disputes of material fact precluded 

the district court from granting summary judgment. They assert 
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that such disputes existed as to whether (1) Bautista was the owner 

of the loans in question; (2) Bautista set forth sufficient 

evidence to prove the validity of the mortgage; (3) the description 

of the mortgaged property was sufficient; and (4) the amounts 

claimed by Bautista reflect all of the payments made by the 

debtors. We address each of these points in turn.

First, Fountainebleu and Loubriel state that there is no 

evidence in the record demonstrating that Bautista owns the credit 

facilities at issue. But, in their answer to the complaint, 

Fountainebleu and Loubriel admitted: Doral Bank executed a loan 

agreement with Fountainebleu as borrower and Loubriel as 

guarantor; to secure the obligations under the loan agreement, 

Doral Bank executed a pledge agreement with Fountainebleu in which 

a mortgage note was pledged in favor of Doral Bank; the mortgage 

guaranteeing the mortgage note encumbers Property 16,778 in the 

Registry of Property of Puerto Rico, Section of Guaynabo; a 

financing statement in relation to the mortgage note was filed in 

favor of Doral Bank before the Department of State; and the 

mortgage note, which was "pledged in favor of Doral [Bank], . . .

was subsequently endorsed in favor of Bautista." Fountainebleu 

and Loubriel offer no evidence or argument that those admitted 

facts do not establish ownership by Bautista of the subject 

facilities. 
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Second, Fountainebleu and Loubriel state that Bautista 

did not produce admissible evidence to show the validity of the 

pledge agreement, the mortgage, and the mortgage note. They say 

that the documents Bautista submitted were drafts lacking the 

signatures and seals required under Puerto Rico law, see P.R. Laws 

Ann. tit. 4, § 2034, and that the versions of the documents 

Bautista submitted are inadmissible and therefore cannot support 

Bautista's motion for summary judgment, see Fed. R. Civ. 

P. 56(c)(2). But Bautista described the pledge agreement, 

mortgage, and mortgage note in its complaint, and it attached 

copies identical to the ones Fountainebleu and Loubriel now 

challenge, incorporating them into the complaint. Fountainebleu

and Loubriel admitted to the veracity of the relevant portions of 

these documents.

Third, Fountainebleu and Loubriel state that, even if 

the pledge, mortgage, and mortgage note are otherwise valid, they 

do not clearly identify the subject property. They emphasize that 

the mortgage deeds guaranteeing the mortgage note differ from a 

title study in how they describe the mortgaged properties. The 

mortgage deeds describe the "remnant" of property number 16,778 -

- the mortgaged property -- as consisting of 91,352.3910 square 

meters, but they also explain that "segregated from the 

aforedescribed property was a part of [2.0628] cuerdas, without 

describing in said deed the remnant." Bautista's title study 
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described property number 16,778 as consisting of 86,232.1484 

square meters since it is a "remnant of this property after 

segregating a lot with an area of 5,120.2426 square meters, 

equivalent to 1.3028 cuerdas."1 Fountainebleu and Loubriel have 

not provided any legal argument or caselaw addressing the 

materiality of such a purported discrepancy in the description of 

the mortgaged property. Accordingly, we deem any argument waived. 

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Finally, Fountainebleu and Loubriel challenge the amount 

of the judgment, claiming that it fails to account for payments 

made to Bautista's predecessor totaling $242,624.89. As the moving 

party, Bautista bore the initial burden of showing that no genuine 

issue of material fact exists. See Feliciano-Muñoz v. RebarberOcasio, 970 F.3d 53, 62 (1st Cir. 2020) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986)). Bautista properly supported 

the amount of the debt via an affidavit from its loan servicer.

At that point, Fountainebleu and Loubriel had to identify specific 

facts demonstrating the existence of a genuine dispute to avoid 

summary judgment against them. See id. Fountainebleu and Loubriel 

produced transaction details and account records as evidence of 

the claimed payments as well as an affidavit of Loubriel contending 

1 Fountainebleu and Loubriel also note that Doral Bank sent 

a letter to Loubriel roughly describing the collateral for the 

loan as parcels of land totaling ninety-three thousand square 

meters.
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that to the best of his knowledge Bautista had not netted these 

payments out. Bautista claims that the payments were netted out

and alternatively that Fountainebleu and Loubriel should have 

looked to Bautista's predecessor.

The record on this point leaves room for reasonable 

debate. If the payments totaling nearly $250,000 were accounted 

for, Bautista should have records showing precisely how and when 

they were applied to the debt. And Loubriel should have -- or 

should have had -- more documents showing that the payments went 

unaccounted for in Bautista's rendering of the total debt. This 

miasma works to Bautista's detriment. While we cannot "allow 

conjecture to substitute for the evidence necessary to survive 

summary judgment," we also "must not engage in making credibility 

determinations or weighing the evidence at the summary judgment 

stage." Town of Westport v. Monsanto Co., 877 F.3d 58, 66 (1st 

Cir. 2017) (quoting Pina v. Children's Place, 740 F.3d 785, 802 

(1st Cir. 2014)). In the absence of more evidence (say, an

accounting of the loan payment history), we have a classic battle 

of the affidavits: the loan servicer's versus Loubriel's. We 

therefore vacate the judgment and remand for the sole purpose of 

better determining the amount due. 

For the foregoing reasons, the judgment is vacated. No costs 

are awarded.