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ROJAS v. FIRST BANK NATL. ASSN.

July 15, 1985

DR. JOSE ROJAS, Plaintiff
v.
FIRST BANK NATIONAL ASSOCIATION, Defendant



The opinion of the court was delivered by: MCLAUGHLIN

McLAUGHLIN, District Judge

This action arises out of an ill-fated voyage by plaintiff, a physician, into the waters of cargo shipping. He seeks to void a guaranty and a note he executed to back up several loans and to get back any payments he made on the loans. He alleges that defendant fraudulently induced him to execute the guaranty and the note, and negligently approved the underlying loans. Additionally, because the parties transacted business by telephone and through the mails, plaintiff has asserted the now obligatory civil RICO claim. 18 U.S.C. § 1964(c).

Defendant, which counterclaimed for the balance owed on the loans, now moves for summary judgment dismissing the complaint and awarding it the amount demanded in the counterclaims. Fed. R. Civ. P. 56. For the reasons developed below, defendant's motion is granted in its entirety.

 Facts

 Undisputed are the following material facts. In July, 1980 plaintiff and two associates formed Interseas Marine, Inc. ("Interseas"), a New York corporation with plaintiff as its president. One year later Interseas borrowed $100,000 from defendant; plaintiff personally guaranteed this loan.

 Also in July, 1981, plaintiff and his associates formed a Liberian corporation, Santa Katerina, S.A., for the purpose of owning and operating a cargo ship, the Santa Katerina. This new corporation, of which plaintiff was vice-president, borrowed $250,000 from AFI Financial Corporation ("AFI"), and bought the Santa Katerina. Plaintiff personally guaranteed this loan as well.

 Within seven months, Santa Katerina, S.A. had reduced its debt to AFI to $89,414.25. Financial statements submitted to defendant by Santa Katerina, S.A. indicate that from July, 1981 to December, 1981, the corporation earned a net profit of $257,000 after only three voyages by the Santa Katerina.

 On February 9, 1982 defendant loaned Santa Katerina, S.A. $300,000, part of which was to be used to satisfy the balance of the loan from AFI. The corporation gave back its promissory note, and plaintiff, among others, personally guaranteed that note.

 Seven months later, in September, 1982, defendant loaned Santa Katerina, S.A. an additional $10,515. The corporation again gave back its promissory note; and plaintiff signed an agreement to be bound by the note as though he were a co-maker thereof.

 Of the $300,000 loan, there remains unpaid $299,501, plus interest and collection costs. Additionally, the entire $10,515 loan, plus interest, is unpaid. By counterclaiming, defendant has exercised its right, embodied in the guaranty and the note signed by plaintiff, to proceed against plaintiff for the entire amount due.

 Discussion

 A. Plaintiff's Complaint

 1. The Fraud Claim

 The complaint alleges, in the vaguest of terms, that defendant fraudulently induced plaintiff to guarantee the loans to Santa Katerina, S.A. The fraud existed, according to plaintiff, in defendant's knowledge that: (1) plaintiff's profession is that of a physician and he is inexperienced in the area of cargo shipping; (2) plaintiff is a man of "substantial assets;" (3) at the time plaintiff was induced to sign the guaranty and the note, Santa Katerina, S.A. was unable ...


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