Rehearing and Rehearing En Banc Denied April 26, 1989.
TORRUELLA, Circuit Judge.
Defendants appeal from the district court's denial of their motion, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure,
Juan Jesus Ramirez Rivera and his wife, Angelica Ileana Ramos Ponce ("Ramirez") had executed a loan agreement and promissory note with Banco Credito y Ahorro Ponceno (the "Bank" or "BCAP"), a bank insured by the Federal Deposit Insurance Corporation (the "FDIC"). The loan was for the principal amount of $100,000, with interest thereon at the rate of 9.5% per annum. Ramirez then subscribed a second promissory note to BCAP, for the principal amount of $110,000, with interest thereon at the rate of 8.5% per annum.
In time, BCAP went bankrupt and the FDIC was granted Receivership of the Bank by appointment of the Treasury Secretary of Puerto Rico pursuant to 7 L.P.R.A. § 201 (1981). As part of this agreement, the FDIC, in its corporate capacity, purchased both of Ramirez' notes. Ramirez did not make the required payments and the FDIC subsequently filed the present suit in the Federal District Court for the District of Puerto Rico for collection on the two defaulted promissory notes. Judgment was entered in favor of the FDIC on August 12, 1986. Federal Deposit Insurance Corp. v. Ramirez Rivera, No. 82 Civ. 2034 (D.P.R. Aug. 12, 1986).
Ramirez appealed the decision and raised for the first time his argument that the loans should not be enforced because the interest charged on both of the loans was usurious under Puerto Rican law. See 31 L.P.R.A. § 4591 (1987). Without specifically addressing Ramirez' usury argument,
Orders denying a Rule 60(b) motion are final orders and are appealable as such. Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir.1986); Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 71-72 (2d Cir.1973). Rule 60(b) motions are addressed to the discretion of the court, Simons v. Gorsuch, 715 F.2d 1248, 1253 (7th Cir.1983), and thus our review is strictly limited to a determination of whether the lower court has abused its discretion.
The defense of usury is an affirmative defense. See In re Casbeer, 793 F.2d 1436, 1438 (5th Cir.1986); Federal Deposit Insurance Co. v. Julius Richman, Inc., 666 F.2d 780, 781 (2d Cir.1981); J.E. Candal & Co. v. Rivera, 86 P.R.R. 481, 488 (1962). Like all affirmative defenses, usury must be claimed in the original pleadings, pursuant to Federal Rules of Civil Procedure 8(c), or the defense generally will be held to have been waived. See Badway v. United States, 367 F.2d 22, 25 (1st Cir.1966).
Nevertheless, courts may treat an affirmative defense that has been raised after the pleadings stage, but has been
It is undisputed by either party that Ramirez did not raise the usury defense until the appeal after final judgment in the case. Although the amounts of the loans, including pertinent interest rates, were admitted at trial, this is clearly insufficient to satisfy Rule 15(b)'s standard that the issue be both raised and tried below. Defeated litigants cannot set aside judgments because of their failure to interpose a defense that should have been presented at trial. Bank of America National Trust & Savings Ass'n v. Mamakos, 509 F.2d 1217 (9th Cir.1975); Schattman v. Texas Empl. Comm'n, 330 F.Supp. 328, 330 (W.D.Tex.1971), rev'd on other grounds, 459 F.2d 32 (5th Cir.1972); cert. denied, 409 U.S. 1107, 93 S.Ct. 901, 34 L.Ed.2d 688 (1973).
More importantly, however, the appellant cannot try to circumvent the appellate process by bringing a motion requesting relief from an order that has already been reviewed and decided on appeal. This court has concluded, prior to the filing of appellants' Rule 60(b) motion, that appellant's usury argument is meritless.
The decision of the court below is thereby AFFIRMED.
Thus, in Federal Deposit Insurance Corp. v. Tito Castro Construction, Inc., 741 F.2d 475, 477-78 (1st Cir.1984), we dismissed the defendant's usury defense against the FDIC because the FDIC had successfully relinquished any asserted rights to usurious interest pursuant to Article 1654 and because this relinquishment was completed before the usury defense was first raised.
In this case, although the original loan agreements may have called for arguably usurious interest rates, the FDIC, in its complaint expressly stated that they "relinquish the right to any interest or discount or value which may be found to be" usurious. This complaint clearly was filed well before Ramirez raised the usury defense.