Full opinion text
OPINION AND ORDER PEREZ-GIMENEZ, Chief Judge. The present action was brought by the Federal Deposit Insurance Corporation in its corporate capacity (“FDIC”) seeking to collect certain assets acquired from the receiver of a closed bank. This opinion and order comes at the tail end of an actively litigated dispute that culminated in a seven-day trial. The consolidated actions now pending before the Court commenced on July 3, 1980, with the filing by the FDIC of the complaint in case number 80-1551 seeking judgment against Luis Martinez Almodovar (“Martinez”) and his former wife, Isabel Amieiro Ortiz (“Amieiro”), for amounts due and owing on certain notes executed and delivered by Martinez to the former Banco Crédito y Ahorro Ponceño (“the Bank”). Martinez failed to respond to the complaint and partial judgment in' default against him was entered on November 17, 1980, in the amount of $350,000.00, plus accrued interest. On July 17, 1981, the FDIC filed a separate action bearing number 81-1322 against Martínez and Amieiro naming also as defendants the daughter of the latter two, Vilma Martinez Amieiro, her husband, Jorge Sesto, and Inversiones Vilmasor, Inc. (“Vilmasor”), alleging that it had not been able to collect the judgment against Martinez in case number 80-1551 due to certain alleged wrongful acts of the defendants involving the transfer of properties for the purpose of hindering, delaying and defrauding the creditors of Martinez. The complaint was subsequently amended on two occasions to include additional defendants. The defendants so joined were Lumaral Corp. (“Lumaral”) and the minor children of Vilma Martinez Amieiro and Jorge Sesto named Vilma and Soraya Sesto Martinez. The second amended complaint, succinctly stated, alleged that as part of a scheme or plan to defeat, hinder or delay the creditors of Martínez, (1) in 1976 while married to one another and while indebted to the Bank, Martínez and Amieiro had transferred all their rights, title and interest in certain parcels of real property to Vilma-sor; (2) Vilmasor had subsequently transferred some of said properties to others; (3) the transfer by Vilmasor had been effected for considerations less than the true values of the properties; (4) in furtherance of the same plan, the defendants had caused Lumaral to acquire certain promissory notes, the transfer of which notes was a sham; (5) Vilmasor and Lumaral were operating as the alter ego of the defendants; and (6) as a result of the acts of the defendants, the FDIC had been unable to collect the judgment against Martinez entered in case number 80-1551. In their answer to the second amended complant, defendants denied all liability and raised the following affirmative defenses: the second amended complaint “fails to state facts upon which a relief could be granted for plaintiff”, the FDIC lacks standing to bring this action, the action is time barred, the Bank “waived the present cause of action” and the Bank had charged an usurious commission and breached the Truth-in-Lending Act, the loan on which claim is made was paid thus releasing Amieiro from all liability, and the original obligation was the subject of novation. Upon timely motion by the FDIC, both cases were subsequently consolidated. Findings of Fact 1. Luis Martinez Almodovar and Isabel Amieiro Ortriz were married to each other in Puerto Rico on June 26, 1938. They remained married until January 19, 1977, when they were divorced by judgment entered by the Superior Court of Puerto Rico, San Juan Part. (Admitted fact number 1; Exhibit C). 2. Vilma Martinez Amieiro (“Vilma”) is the only child of Martínez and Amieiro and is married to defendant Jorge Sesto (“Ses-to”). (Ad. 3-4). 3. Vilma Sesto Martinez and Soraya Sesto Martínez are the minor children of Vilma and Sesto. (Ad. 5). 4. The FDIC is a corporation organized under the laws of the United States of America, to wit: 12 U.S.C. § 1811, and brought the present action in its corporate capacity. (Ad. 6). 5. Banco Crédito y Ahorro Poneeño (“the Bank”) was a banking institution organized and existing under the laws of the Commonwealth of Puerto Rico prior to March 31, 1978. (Ad. 7). 6. On April 27, 1967, Martinez requested a $200,000 loan from the Bank, which loan was approved by the Board of Directors of the Bank on May 4, 1967. (Ad. 12-13). 7. In April of 1968 the unpaid balance of the loan was $83,000 and Martinez applied to the Bank for a loan of $200,000, payable on demand. (Ad. 14). 8. On May 23, 1968, the Board of Directors of the Bank approved the loan “with the signature of his [Martinez] wife.” (Ad. 15). 9. On July 3, 1968, Amieiro executed a guaranty for the amount of $200,000. (Ad. 16; Exh. 10). 10. The credit facility established by the parties operated as a line of credit in which the borrowers made payments and obtained additional advances from time to time. (Exh. 10). 11. As of November 12, 1969, Martinez owed the Bank a balance of $138,000 in principal on his $200,000 line of credit after crediting all payments made. (Exh. 11). 12. On April 30, 1970, Martinez applied to the Bank for renewal of the $200,000 line of credit, and the application was approved by the Board of Directors of the Bank on May 14, 1970. (Ad. 17). 13. On July 7, 1970, Martinez applied to the Bank for an additional loan in the amount of $150,000, payable on demand, payment of which would be secured by the pledge of certain shares of capital stock of Banco de Economías, of which Martinez was the holder of record. The application was approved by the Board of Directors of the Bank on July 9, 1970, and this credit facility was operated as a line of credit. (Ad. 18; Exh. PPP). 14. Between November 12, 1969, and March 14, 1972, partial disbursements to Martinez under the two lines of credit to-talled $380,000, and the amounts advanced were credited to Martinez’s personal checking account with the Bank. (Exh. 11). 15. During that same period of time Martinez drew checks against his same personal account in the aggregate amount of $549,373.71, of which amount $379,613.71 were used by Martinez to purchase 7,339 shares of stock of Banco de Economias and shares of stock of another corporate entity named Commonwealth Loan Corp., $55,000 were given as a loan to a corporation of which he was a shareholder, $24,760 to repay personal loans and to pay legal fees related to his personal investment transactions, and $90,000 was given as a loan to two other corporations. (Exhs. 12 to 15, 21; testimony of W. de la Cruz, M. Carlo, L. Nazario, R. Durand). 16. By March 14, 1972, the total of all disbursements made under both lines of credit was $887,000. Of this amount, $537,000 in principal had been repaid, thus leaving an unpaid principal balance of $350,000 as of that date. (Exhs. 12, 13, 14, 21). 17. As of May 9, 1973, the total indebtedness of Martínez and Amieiro on both credit facilities continued to be the principal amount of $350,000. (Exh. 11). After that date, the bank did not make any additional disbursements nor did Martinez and Amieiro make any payments of the principal due and owing on said lines of credit. (Exhs. O, BB, TTT, UUU, WV, DDDD, testimony of T. Niemczyk). Interest was paid in September 1975. (Finding number 18 below). 18. On or about September 11,1975, the Bank issued two credit advices purporting to show two new loans in the amounts of $200,000 and $150,000, respectively, which represented the principal owed by Martinez and Amieiro on the outstanding lines of credit. The amounts in question were credited to Martinez’s account with the Bank. On that same date the Bank debited Martinez’s account in the amounts of $200,-512.35 and $150,384.28. As a result of these transactions the Bank collected the interest accrued to that date on the amounts due. The Bank did not actually disburse any money to Martínez and the principal indebtedness remained the same. (Exhs. 16-20). 19. On the same date of this purported loan transaction, Martinez executed and delivered to the Bank two promissory notes in the amount of $200,000 and $150,000, respectively, payable on demand, with interest at 8V2% per annum, payable monthly. Payment of the $150,000 note was secured by the pledge of 10,964 shares of capital stock of Banco de Economías. (Exhs. 8-9). 20. No payments of principal on account on said notes have ever been made by Martinez and Amieiro. (Exhs. TTT, BB, O, UUU, VW, DDDD, testimony of T. Niemczyk). 21. By 1975, Banco de Economías was submerged in a precarious financial condition due to the losses suffered, its unprofitable operations and its deficit of capital. Martinez, who had been President of Banco de Economías, switched positions with the Chairman of the Board, Jorge Colón Nevarez, urged by supervisory authorities of the institution who suggested the change in an attempt to improve the condition of Banco de Economías. Martinez was fully aware of the situation of Banco de Economías that affected his major asset, the shares of capital stock of Banco de Economías owned by him and which had been pledged to secure payment of his obligation to the Bank. (Testimony of D. Kev-ane, J. Colón Nevárez, K. Hirschmann, Exh. 22). The examination of Banco de Economías by the examiners of the Secretary of Treasury of Puerto Rico and the FDIC disclosed a deficit in net capital and reserves of approximately $3.8 million at April 25, 1974. By July 7, 1975, the deficit had increased to approximately $22.3 million. (Exh. 22-1). 22. Commencing on or about May 9, 1975, Martinez, Amieiro, Yilma and Sesto engaged in a series of purported transactions with the purpose and effect of shielding their assets from the claims of creditors, including the Bank. 23. The lines of credit extended to Martinez and Amieiro by the Bank matured in May 1975. (Exh. B). On May 9, 1975, Martinez executed promissory notes payable to bearer in the aggregate amount of $285,000 and mortgages securing payment thereof, which encumbered five parcels of real property in his name and that of Am-ieiro. In each instrument so executed Martinez acted on behalf of Amieiro by means of a general power of attorney. (Exh. 24). The promissory notes were not negotiated by Martinez and Amieiro, who retained possession of same and no consideration was received by Martínez and Am-ieiro. (Exhs. 26 through 30). Another parcel of real property recorded in the name of Martinez and Amieiro was already mortgaged to secure payment of three promissory notes payable to bearer in the aggregate amount of $150,000. The six parcels were subject to mortgages totalling $435,-000 following the transactions of May 9, 1975. 24. Certified financial statements for Martinez and Amieiro as of January 31, 1976, were prepared by the public auditing firm of Luis E. Cintron & Co., with a certificate dated March 22, 1976. These statements disclose total real estate at a cost of $314,978 and estimated value of $836,055. The notes to the financial statements show first mortgages only in the amount of $74,363, collateralized by real estate with an estimated market value of approximately $121,500. The apparent discrepancy was not explained although Luis E. Cintrón, a certified public accountant, testified at trial. (Exh. O). The logical inference is that the properties were considered unencumbered since the mortgagors had not negotiated the notes secured by the mortgages. Nevertheless, an investigation in the property registry would disclose that the properties were encumbered. The financial statement as of January 31, 1976, was submitted to the Bank. (Exh. B). 25. On December 9, 1976, Vilmasor was incorporated in Puerto Rico. On December 16, 1976, Martinez and Amieiro, while still husband and wife, transferred to Vilmasor the six parcels of real property recorded in their names. The properties transferred were given an aggregate value of $579,000 in the deed. As consideration Martinez and Amieiro received 1,440 shares of preferred stock of Vilmasor of the par value of $100 per share, or a total value of $144,000. The deed further recited that Vilmasor retained $435,000 to satisfy the mortgages when due. (Exh 25). The only assets of Vilmasor at the time were the real properties so transferred. (Exh. 1-1). 26. On the same date, December 16, 1976, Martínez and Amieiro pledged to Lu-maral six notes payable to bearer in the aggregate amount of $345,000, all secured by mortgages on the real properties transferred to Vilmasor. (Exh. 35). Among the notes listed in the pledge agreement is one in the amount of $75,000, payable to bearer on demand and secured by a mortgage created by deed number 8, executed on May 9, 1975, before notary Robert M. Sweeting. This deed was not presented as evidence and the note apparently is in addition to those referred to previously. This note and mortgage appear to correspond to the first mortgage shown in the notes to financial statements referred to above in finding number 24. The pledge agreement executed on December 16, 1976, states that the notes secured by mortgages were pledged in substitution for ten unsecured notes identified in the instrument, all payable on demand, with the aggregate principal value of $350,024.90, purportedly made by Martinez in favor of Lumaral. However, the pledge agreement states that the principal of these unsecured notes is the total sum of $350,524.90. This discrepancy is not explained by the evidence. Lumaral was incorporated in Puerto Rico in 1963 with the name “Martinez Department Store, Inc.” Sometime in 1972 the name was changed to “Lumaral Investment and Management Corp.”, and finally, in 1975, the name was changed to “Lumaral Corp.” (Exh. 1-2). 27. Following their divorce on January 19,1977, Martínez and Amieiro executed on January 28, 1977, an instrument by which they purportedly divided the assets of their conjugal partnership. (Exh. F). This instrument awarded to Amieiro a list of assets identified in detail, including all of the shares of stock held by Martínez and Am-ieiro in Lumaral, Vilmasor, and Martinez Electric appliances Corporation; all right, title and interest of the conjugal partnership in the notes pledged to Lumaral; a note payable to bearer on demand in the amount of $50,000, secured by mortgage created on May 9, 1975; a parcel of real property in Aguadilla, Puerto Rico; all jewelry and articles of personal adornment and personal effects of Amieiro; and all household effects and furnishings located in the conjugal home in Aguadilla, Puerto Rico, as well as in an apartment located in San Juan, Puerto Rico. The document does not detail the conjugal assets assigned to Martinez, making reference only to “all the other assets or properties, shares, interests and rights of the said partnership [conjugal partnership of Martinez and Amieiro] that have not been subject of adjudication in favor of [Amieiro].” No express provision was made for payment of the debts of the conjugal partnership except the assumption thereof by Martinez of all said liabilities. (Exh. F). 28. On February 18, 1977, Vilmasor, represented by Martinez, sold one of the parcels of land which had been transferred to it by Martinez and Amieiro on December 16, 1976. The mortgage encumbering the parcel was cancelled. (Exhs. 31 and 32). The deed which cancelled the note and mortgage recites that the note had been acquired by endorsement to Vilmasor after repayment of the principal of the loan and interest, and that the note was then in possession of Vilmasor and was not assigned, endorsed nor encumbered in favor of any person. The note attached to the deed of cancellation of mortgage bears no endorsement of any kind. (Exh. 31). At the time of transfer to Vilmasor on December 16, 1976, this parcel of land was valued at $34,000. (Exh. 25). That amount in effect represented the cost to Vilmasor. The parcel was purportedly sold for $25,-000 on February 18, 1977. (Exh. 32). The deed recites that Martinez acknowledged receiving that sum from the purchaser pri- or to the execution of the deed. (Exh. 32). It would thus appear that Vilmasor had suffered a loss of $9,000 in this transaction. The bookkeeping entries made by Vilma-sor, however, reflect a different result. On January 31, 1977, prior to the date of the sale, the asset account for land was reduced by $34,000 (Exh. 52), and this amount was entered into an account opened to record the sale of property. (Exh. 59). These entries resulted from a journal entry dated January 31 in a column headed with the year “1977”. (Exh. 57). On the same date another journal entry was prepared, increasing the cost of the property in the sale of property account in the amount of $812.50 and crediting accounts receivable from Amieiro in the same amount. (Exh. 57). The record of cash received was not made until May 1977, when a journal entry was prepared to record a series of cash transactions for that month. An undated item in that entry reflects the receipt of cash in the amount of $25,000. (Exh. 60). Although the note and mortgage in the amount of $25,000 which encumbered this parcel were can-celled by a deed dated February 18, 1977 (Exh. 31), no record was made in the books of Vilmasor until December 81, 1977, when a journal entry was made to reflect the reduction in notes payable. (Exh. 58). This entry eliminates the apparent loss on the sale of this land by a credit to the sale of property account in the amount of $18,-573.36 and a credit to accounts receivable from Amieiro in the amount of $6,426.64 (Exh. 58). The explanation for this entry states: “To write off excess of cost registered in exchange of property which was sold in 1977.” It thus appears that the loss on this transaction was converted into a gain by a series of bookkeeping entries, with no explanation of the reason for these entries. This series of transactions indicates that Amieiro received credits on her indebtedness to Vilmasor in the amounts of $6,426.64 and $812.50, or a total of $7,239.14 in lieu of the amount of $25,000 for which the property was mortgaged. Since the selling price was $25,000, and the gain reflected after this series of entries was $8,760.86 (Exh. 59), the actual cost of this property to Vilmasor was $16,239.14. The difference between this amount and the credit given to Amieiro in her indebtedness in the amount of $7,239.14 is $9,000, precisely the difference between the value placed on this property when transferred to Vilmasor and the mortgage which encumbered it. The $9,000 of preferred shares issued to Martinez and Amieiro in consideration of the transfer of this property thus appear to have been issued for no real value. Stated alternatively, the property was mortgaged for $25,000 and was sold for that amount some two months after its transfer to Vilmasor. The true value of the property would thus appear to be the amount for which it was mortgaged and therefore the preferred shares issued in consideration of the transfer of that property were issued without any real value being received by Vilmasor. 29. Two other properties transferred to Vilmasor on December 16, 1976, were sold on July 17, 1978, and the mortgages encumbering same were cancelled. This time Vilma represented Vilmasor in the execution of the deeds. (Exhs. 33 and 34). The deed cancelling the notes and mortgages makes no reference to payment of the notes nor their acquisition by Vilmasor, but rather, recites that Vilma has possession of the notes as president of Vilmasor, and having no need to negotiate same, desires to cancel the notes and delivers them to the notary for cancellation. (Exh. 33). The bookkeeping entries recording these transactions again do not accord with the deeds executed. Each of the two parcels was valued at $33,000 when acquired by Vilma-sor in December 1976, and each was encumbered by a mortgage in the amount of $20,000. (Exh. 25). The parcels were sold for $12,500 each, or a total of $25,000. (Exh. 34). The account in which these parcels were recorded, entitled “Investment in Real Estate”, shows a credit upon the sale in the amount of $66,000. (Exh. 66). A journal entry for December 1978 includes an item of $25,000 deposited in the bank, which is unidentified and undated. (Exh. 54). Nevertheless, the financial statements of Vilmasor as of January 31, 1979, disclose a sale of land at Cabo Rojo, Puerto Rico, for the amount of $69,869.38. The statement of income for the period ended on the same date includes a gain on sale of real property in the amount of $3,869.38. (Exh. G). The statement of changes in financial position for the same period reflects the elimination of notes payable in the amount of $42,000, $40,000 of which apparently correspond to the cancellation of the mortgages on these two parcels of land. Since the properties were recorded at a cost to Vilmasor of $66,000 and were sold for a total of $25,000, Vilmasor suffered an apparent loss of $41,000. It would also appear that there was no equity in the properties when transferred to Vil-masor since the mortgages totalled $40,000 and the selling price was $25,000. Again, it appears that the shares of stock of Vil-masor issued in consideration for the transfer of these properties were issued with no real value received by Vilmasor. The discrepancies between the deeds effecting the transfers of the properties and the bookkeeping entries relating thereto were not explained although the independent auditor and the person operating the bookkeeping service of Vilmasor both testified during the trial. 30. The transactions recorded between May 1975 and early 1978 had the purpose and purported effect of placing almost all of the assets of Martinez and Amieiro in two corporations, Vilmasor and Lumaral, with Amieiro holding all or substantially all of the issued and outstanding stock of those corporations and leaving Martinez with no identified assets and a purported assumption of all liabilities of himself and Amieiro. 31. Commencing in January 1975 the market price of shares of Banco Economias declines steadily. (Exh. A). By June of 1977 the shareholders of Banco de Eco-nomías, of which Martinez was chairman of the board, were informed of a proposed purchase and assumption transaction involving the FDIC and Banco Central, S.A. of Madrid, Spain. The proposal contemplated liquidation of Banco de Economías and that shareholders would receive for each share of the bank’s stock held a warrant to purchase for one dollar, one share of the assuming bank during the month of May 1982. The proposal also provided for issuance of capital notes to be held by the FDIC and that the shareholders would receive nothing in respect of their contingent interest in the capital notes until the FDIC had been fully repaid for all expenses and losses incurred in the liquidation of $15,-000,000 of assets which the FDIC had purchased, consisting mainly of adversely classified loans and the security therefor. The financial statements of Banco de Eco-nomías showed losses in excess of $4,000,-000 for the year ended December 31, 1975, and in excess of $20,000,000 for the year ended December 31, 1976. The proxy statement distributed to the shareholders of Banco de Economías informed them that “you will not retain a share ownership in the Assuming Bank.” (Exh. 4). The shares pledged by Martinez to secure payment of the indebtedness to Banco Crédito y Ahorro Ponceño were thus rendered valueless. 32. On or about March 31, 1978, the Secretary of the Treasury of the Commonwealth of Puerto Rico (“the Secretary”) determined that the Bank was in an unsound financial condition to continue doing business and insolvent. Using as his authority Article 30 of the Banking Law of Puerto Rico, 7 L.P.R.A. § 202, the Secretary ordered the Bank closed, took possession of its assets and affairs and tendered to the FDIC the appointment as receiver of the Bank. Pursuant to 12 U.S.C. § 1821(e), the FDIC accepted appointment as receiver of the Bank as tendered by the Secretary. (Ad. 8-10). 33. On the same date, the FDIC, in its corporate capacity, and as authorized by 12 U.S.C. former § 1823(e), purchased from the Receiver certain assets of the Bank among which is the claim at issue in the present action. (Ad. 11). 34. On November 27, 1978, the FDIC notified Martinez at his San Juan post office address that it was the holder of his obligations and requested that he contact the FDIC to make arrangements for the prompt liquidation of his indebtedness. (Exh. WWW). 35. On January 31, 1980, an analysis of fixed assets was prepared by the auditors of Lumaral to record the sale of a building located in Isabela, Puerto Rico. (Exh. 47). According to that entry the sale had been made on May 9,1975, but was not recorded in the books until January 31, 1980. The preliminary draft of the financial statements of Lumaral for the fiscal year ended January 31,1980, were submitted to Amiei-ro as president of Lumaral on or about May 13, 1980. (Exh. 46). The preliminary draft initially reflected property leased to others shown at cost of $30,917 as of January 31, 1979. That property was not included among the assets as of January 31, 1980, and the statement of income and retained earnings reflected a gain on sale of property in the amount of $15,083. That gain is also reflected in the analysis of fixed assets referred to above. The statement of changes in financial position in the preliminary draft of the financial statements indicates proceeds from sale of property in the amount of $45,000 and an increase in notes and accounts receivable from stockholders in the amount of $45,-000. (Exh. 46). The preliminary draft was subsequently changed by handwritten notes made therein to reverse the entry recording the sale. The handwritten changes reduced notes and accounts receivable from stockholders by the amount of $45,000, restored the depreciated cost of the property of $29,917 to the balance sheet, and eliminated the gain on sale of property in the statement of income and retained earnings. The same auditors, Luis E. Cintrón & Co., prepared certified financial statements for Lumaral for each of the fiscal years ended January 31, 1975, through 1981. (Exhs. 43, 46 and 49). The same auditors also prepared the certified financial statements of Martínez and Am-ieiro as of January 31, 1976 (Exh. 0), and another accountant, Víctor M. Simons, prepared the financial statements of Martinez as of December 31, 1976 (Exh. DDDD). None of those statements reflected the sale of the property which reportedly occurred on May 9, 1975. The analysis of the account entitled “Loans Receivable/Employees”, on which the name of Amieiro was handwritten (Exh. 42), recorded the sale of the property in the amount of $45,000 on January 31, 1980. Beside the entry recording this sale the word “No” was handwritten. A footnote cross-referenced to that entry states “According to deed # 7”. No entry was made in this account to eliminate the record of the sale. The purported date of the sale is the same date on which Martinez executed the six notes and mortgages referred to in finding 23 above. (Exhs. 26, 27, 28, 29 and 30). The entries as recorded in the accounting records of Lumaral would indicate that the sale had been made to Amieiro. On the purported date of the sale Amieiro was still married to Martinez. If the sale was actually made in 1975, then the financial records and statements of Lumaral, Martinez and Am-ieiro referred to above contained misrepresentations which had the effect of secreting assets of the shareholders of Lumaral. If, on the other hand, the sale was not actually effected, then the recording of the sale in the accounting records of Lumaral must have had some other purpose. Although accountants Luis E. Cintrón and Víctor M. Simons as well as Amieiro and Vilma testified during the trial, no explanation was offered. The evidence is probative at least of the unreliability of the accounting records and financial statements of the defendants. 36. The records of Vilmasor reflect that on or about February 1, 1980, Amieiro donated to her granddaughters, Vilma and Soraya Sesto, 300 of her shares of the preferred stock of Vilmasor. (Exhs. 69, I). 37. The records of Vilmasor reflect that fourteen days later, on February 15, 1980, Amieiro transferred back to Vilmasor her remaining 1,140 shares of the capital stock of said corporation with a total par value of $114,000 in exchange for the cancellation of her personal indebtedness of $98,287.20 to Vilmasor. The balance of $15,717,80 was then recorded in the books of Vilmasor as an account payable to Amieiro. (Exhs. 2, 69, K). 38. The records of Vilmasor reflect that on the same date, February 15, 1980, Am-ieiro assigned to Lumaral in payment of personal indebtedness of Amieiro and her daughter notes payable to bearer in the amount of $370,000 which had been previously pledged to Lumaral and which were secured by mortgages that encumbered the properties transferred to Vilmasor in 1976 by Amieiro and Martinez. Amieiro's debt purportedly amounted to $348,850.67, and Vilma’s to $21,149.33. (Exhs. 2, 44, L, M). Although the note receivable from Amieiro, which was cancelled, bore interest at 6% per annum, the same was never recorded in the books of Lumaral nor collected from Amieiro. (Exhs. 2, 69). 39. The records of Vilmasor reflect that on or about February 15, 1980, Vilmasor issued 50 common shares of its capital stock to Vilma in payment for services rendered. The minutes of the meeting of the board of directors of Vilmasor held on February 15, 1980, recite the action related in findings 36, 38 and 39, without any further explanation. The minutes refer to the notes assigned to Lumaral as notes “of the corporation”, whereas the notes were subscribed by Martinez. (Exh. 69). The same error appears in the journal entry recording the assignment of the notes in the records of Lumaral, where the reference is to “exchange of notes from Inversiones Vilmasor, Inc.” (Exh. 48). The nature of the services rendered by Vilma, or the dates when rendered, or the method of evaluating same are not detailed in the resolution relating to the issuance of the shares to Vilma. (Exh. 69). 40. The minutes of the meeting of directors of Vilmasor at which the transactions related in findings 36, 38 and 39 were approved engender additional doubt as to the reliability of the records maintained by defendants. There are two minutes drawn in identical language, although they are not exact duplicates, the spacing indicating that they were typewritten in separate operations. Both are signed by Amieiro as secretary and Vilma as president. One of these minutes is dated February 15, 1980, and the other is dated February 15, 1982. No explanation of this apparent discrepancy was offered by defendants. The dates are significant since the former antedates the institution of this action, while the latter is almost twenty months subsequent to the filing of the initial complaint in this action. 41. Vilma and Sesto had constructed and resided in a house on land owned by Martinez and Amieiro and on which the family home of Martinez and Amieiro was also located. The records of Vilmasor reflect that during the fiscal year ended January 31, 1979, Vilma and Sesto sold their house to Vilmasor for $70,000. The records show a down payment of $2,000 and equal monthly installments of $650. The transaction is not mentioned in the minutes of meetings of directors nor shareholders of Vilmasor. No payments of rent for the use of the house appear in the records of Vilmasor. (Exh. 2). 42. One of the properties owned by Lu-maral was a penthouse apartment which was sold by the latter during 1979. Prior to the sale, the apartment was used by Amieiro as her personal residence although she never paid any rent. (Exhs. 2, O). The apartment was also shown as the principal office of Vilmasor and Lumaral in the domestic corporation reports of each filed with the Department of State of Puerto Rico. (Exhs. 1-1 and 1-2). The proceeds from the sale of said apartment were advanced by Lumaral to Amieiro for the purchase of an apartment in her name to be used as her personal residence (Exhs. 46, 54). The address of the apartment which had been sold in 1979 continued to be shown as the address of the principal office of Lumaral in the domestic corporation reports filed for the years 1980 and 1981. (Exh. 1-2). 43. As of January 31, 1981, the capital of Lumaral, as per the latter’s financial statement, amounted to $738,752. This amount is broken down as follows: $123,-614 represented by 1,236.14 shares of class A common stock with a par value of $100 per share, issued to Amieiro; $100,000 represented by 1,000 class B common shares with a par value of $100 per share issued to Vilma; $247,000 represented by 2,470 shares of preferred stock with a par value of $100 per share issued to Amieiro; and $268,138 recorded during 1980 as paid-in capital. This amount represented an account payable to a certain Martinez Electric Appliance Corp., a dormant corporation, which was cancelled. As consideration for the purchase of the shares issued to her, Vilma executed and delivered to Lu-maral a note for $100,000 payable on demand, bearing interest at 5% per annum. The note was still outstanding at the time of trial and Lumaral had never recorded or collected any interest thereon. (Exhs. 1, 2, 43, 45, 59, H). 44. During the period from February 1, 1977, to January 31, 1982, the total income of Vilmasor and Lumaral amounted to $352,457. The amount disbursed by the corporation as expenses during that same period (property taxes, maintenance, insurance, taxes and licenses, and others) to-talled $101,648. This left a balance of funds available of $250,809. Notwithstanding this, Amieiro, Vilma and Sesto, withdrew a total of $272,536 for their personal benefit. The sources and uses given to the funds received by both corporations were distributed as follows: Sources of Funds Rents $289,912 Gain on sale of properties 62,545 Total of funds $862,467 Uses of Funds I. Corporate expenses 101,648 Balance of funds available $260,809 II. Amounts withdrawn by Amieiro, Vilma and Sesto A. Professional services paid to Vilma $28,400 Amieiro 80,900 B. Travel expenses paid to Vilma 9,960 Amieiro 14,100 C. Representation expenses paid to Vilma 2,700 Amieiro 10,800 D. Down payment and mortgage payments to Vilma and Sesto for purchase of house 25,400 E. Loans to Vilma and Sesto 9,897 Amieiro 106,512 P. Premiums of insurance policy on life of Martinez in which Vilma is sole beneficiary 33,377 G. Leasehold improvements on house used as personal residence of Vilma and Sesto 6,000 Total fund used by or disbursed for the benefit of Vilma, Sesto and Amieiro $272,536 Excess of amounts withdrawn by Amieiro, Vilma and Sesto over corporate income $21,727 45.All the amounts paid were disbursed through Vilmasor since Lumaral does not have a bank account. Vilmasor also receives and deposits the rent and income payable to Lumaral. The basic source of income of Lumaral and Vilmasor was the rentals derived from the properties that were originally transferred to them by Martínez and Amieiro. Nevertheless, no evidence was presented to justify the large amount of allowances paid to Vilma and Sesto for travel and representation expenses. Although the total amount received by Vilma and Amieiro amounted to $55,800 and $61,450, respectively, only $34,-499 were reported by Vilma and $19,080 by Amieiro in their personal income tax returns for the same periods. (Exh. 2). 46. No tax was withheld from payments made to Amieiro and Vilma. The travel expenses and representation expenses recorded in the books of Vilmasor and Lu-maral were not reimbursements of expenses incurred, nor amounts paid to third parties. Amieiro and Vilma drew a fixed amount per month, which was varied from time-to-time, and charged these expenses. The minutes of the corporations are silent as to compensation of officers or directors. The evidence presented does not disclose that either corporation had any other employees. For the fiscal year ended January 31, 1979, the amount of $8,200 recorded as professional fees paid by Vilmasor to Am-ieiro and Vilma were transferred to the travel expense account. (Exhs. 66 and 64). The only explanation given is “to reclassify as traveling expense.” 47. From the time of its incorporation and up to the time of trial, the only directors and officers of Vilmasor were Am-ieiro, Vilma and Sesto. (Exh. 1-1). In Lumaral, the directors in 1974 and 1975 were Martinez, Amieiro and Vilma. The same persons were the officers with the addition of one other person as secretary and assistant treasurer. Commencing with the year 1976 and thereafter the only directors and officers of Lumaral were Am-ieiro, Vilma and Sesto (Exh. 1-2). 48. The pattern of the transactions here related, the confusing and sketchy records of these transactions, the failure of defendants to suggest any sound business reasons for these transactions, and the effect of these transactions on the financial condition of the individual defendants leads to the conclusion that Vilmasor and Lumaral were utilized by Martinez, Amieiro, Vilma and Sesto as repositories for the assets of Martinez and Amieiro where those assets would not be readily subject to the claims of creditors of Martínez and Amiei-ro. The intention of the defendants was to deprive the creditors of Martínez and Am-ieiro of a source for satisfaction of their claims while preserving to the defendants the income from those sources. The corporations, Vilmasor and Lumaral, do not have separate personalities from the individual defendants who control them but are mere extensions of the personalities of the latter. 49. The scheme by which the defendants attempted to shield the assets from the creditors of Martínez and Amieiro, and particularly the Bank and the FDIC after the closing of the Bank, commenced with the creation of the mortgages in May 1975 and was continuing at the time of trial. Some of the significant acts in furtherance of the scheme occurred in February 1980. The discrepancy in dates on the minutes of the meeting of directors referred to in finding number 40 above suggests that the action may have been taken in 1982 and the documents prepared to reflect an earlier date. Conclusions of Law The FDIC is a federal corporation created in 1933 by an Act of Congress “to promote the soundness of banking and to aid the government in the discharge of its fiscal transactions.” Freeling v. FDIC, 221 F.Supp. 955 (W.D.Okla.1962). Its overall purpose is to protect the public interest and promote confidence in the banking system. FDIC v. Rockelman, 460 F.Supp. 999, 102 (E.D.Wis.1978). As a federal corporation it is expressly authorized to sue or be sued, and when it sues in its corporate capacity, such suit “shall be deemed to arise under the laws of the United States.” 12 U.S.C. § 1819. In this case the claim is brought by the FDIC in its corporate capacity (Pretrial Order ¶ 11); consequently, the rights and obligations of the parties present a federal question which must be determined by federal law. D’Oench Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 455-6, 62 S.Ct. 676, 678-79, 86 L.Ed. 956 (1942). The more difficult task is determining exactly what federal rule, in the absence of specific statute, will be followed with respect to a particular claim for relief or defense thereto. Although Congress created the corporation, it did not attempt to regulate each and every contract, transaction, obligation or claim arising therefrom which conceivably could be acquired from a closed insured bank, and which subsequently becomes the object of litigation to which the FDIC is a party. Neither did Congress attempt to regulate all situations in which the FDIC, in its corporate capacity, could be involved because of conduct or activity detrimental to its role as insurer. The issues involved in this case derive in part from assets acquired from the closed bank pursuant to 12 U.S.C. § 1823(c)(2), and in part from conduct aimed at defrauding the insured bank and the FDIC with respect to those assets. Even though those issues are to be resolved under federal law, such law must be ascertained from the Constitution, existing statutes or common law. The latter is said to “implement [] the federal Constitution and statutes, and is conditioned by them.” D’Oench, 315 U.S. at 472, 62 S.Ct. at 686. (Jackson, J., concurring). Aside from the provisions of the Federal Deposit Insurance Act, 12 U.S.C. § 1811, et seq, and the protective policy formulated by the Supreme Court in relation thereto, D’Oench, 315 U.S. at 457-460, 62 S.Ct. at 679-80, it will be necessary to fashion appropriate rules for resolving each of the various controversies before the Court. The federal policies deriving from the Act provide a different and perhaps unique framework within which FDIC claims and defenses thereto are to be resolved, particularly where the issue at bar implicates or relates to “nationwide federal programs.” United States v. Kimbell Foods, Inc., 440 U.S. 715, 724, 99 S.Ct. 1448, 1456, 59 L.Ed.2d 711 (1979). Although in some instances adoption of a uniform federal rule is not required, Id., at 728-729, 99 S.Ct. at 1458-59, and state law may be incorporated to determine the rights of the FDIC, Id., such an exception requires an underlying determination of “whether application of state law would frustrate specific objectives of the federal programs.” Id. If so, “special rules solicitous of those federal interest” must be fashioned. Id. Guided by the principles outlined by the Supreme Court in the Kimbell opinion, the issues presented will now be examined and resolved. A. Standing of the FDIC The standing of the FDIC to bring the present action was raised as an affirmative defense. The issue was listed in the pretrial order. Nevertheless, the defendants adduced no evidence or presented any motions addressed to that issue. To the contrary, they made the following admissions in the same pretrial order: ■9. Using as his authority Article 30 of the Banking Law of Puerto Rico, 7 L.P. R.A. § 202, the Secretary [of the Treasury of the Commonwealth of Puerto Rico] unilaterally ordered the Bank closed, took possession of its assets and affairs and tendered to the FDIC the appointment as receiver of the Bank. 10. Pursuant to 12 U.S.C. § 1821(e), the FDIC accepted appointment as receiver of the Bank as tendered by the Secretary. 11. The FDIC, in its corporate capacity, and using as its authority 12 U.S.C. § 1823(e), purchased from the receiver certain assets of the Bank. Among the assets acquired in this manner from the receiver by the FDIC in its corporate capacity was the claim related in the complaint in this action. The procedure followed by the FDIC is legislatively authorized, 12 U.S.C. § 1823(e) (West 1986 Supp.), and judicially sanctioned. FDIC v. de Jesús Vélez, 514 F.Supp. 829 (D.P.R.1981), aff'd, 678 F.2d 371 (1st Cir.1982); Brown v. New York Life Ins. Co., 152 F.2d 246 (9th Cir.1945); Lamberton v. FDIC, 141 F.2d 95 (3rd Cir.1944); FDIC v. Rectenwall, 97 F.Supp. 273 (N.D.Ind.1951); FDIC v. Abraham, 439 F.Supp. 1150 (E.D.La.1977); see also, FDIC v. La Rambla Shopping Center, Inc., 791 F.2d 215, 218-220 (1st Cir.1986). Absent any evidence or legal basis for the defense, it must be concluded that the FDIC does have standing to bring this action on the claims presented in the complaint. B. No Extinctive Novation Occurred Defendants also claim that Martinez’s original obligation was extinguished by no-vation, consequently releasing Amieiro from all liability that she might have had on the original indebtedness. The defense appears to be based on Article 1158 of the Civil Code of Puerto Rico, 31 L.P.R.A. § 3242, which provides that an obligation may be extinguished by another which substitutes it when the latter so expressly declares, or the old and new obligations are “incompatible in all points.” Reliance is placed by the defendants on a certain pledge agreement by and between the Bank and Martinez and his second wife, Karelia Brito de Martinez, on September 9, 1977. (Exh. Q). The agreement in question contains neither an express nor an implied declaration of an intention to extinguish any prior obligations of Martinez. The intention of the parties, as clearly stated in the pledge agreement, was merely to provide security for obligations to the Bank, “present or future, direct and contingent, due or to become due ...” of Martinez and his then wife, Karelia Brito-Geli. No mention is made in the document, other than the reference to “present” obligations, to the outstanding loans of Martinez as of the date of the agreement. Defendants further rely for their contention that there was a novation, on certain correspondence by and between the Bank and Martinez relating to a repayment plan requested by and granted to the latter by the Bank. (Exhs. BB, CC, ZZ, BBB, EEE, QQQ). The letters in question merely show that Martinez had on various occasions attempted to agree on a plan with the Bank for the payment of his obligations. Finally, on November 14, 1977, Martinez was notified by José A. Figueroa, Vice-President of the Bank, that the Board of Directors of the Bank had approved the plan that they had previously discussed by which the Bank would accept monthly payments of $1,000 of interest, for a period of 12 months, after which the matter would be reviewed in order to establish a more adequate payment plan. (Exh. QQQ). On November 19, 1977, Martinez replied to Figueroa forwarding his first check in accordance with the plan. (Exh. EEE). There is no suggestion in the letters nor in any other document admitted into evidence of an intention to substitute or extinguish an obligation existing at the time that the payment plan was approved by the Bank. Even if Martinez did intend to substitute his old obligations with a new one, a finding that is not supported by evidence of any kind, the consent of the Bank to such substitution is an essential element of novation which is missing in this case. Cámara Insular, Etc. v. Santiago, 83 P.R.R. 574, 580 (1961); Ríos v. Rosaly, 50 P.R.R. 652 (1933); Bou v. Colorado, 24 P.R.R. 125 (1916). “[N]ovation, whether it refers to the subject or to the object of the obligation, is never presumed, but it must be established without any sort of doubt.” Caribe Lumber Corp. v. Marrero, 78 P.R.R. 826, 833 (1955). This basic principle was reaffirmed in Warner Lambert Co. v. Tribunal Superior, 101 D.P.R. 378 (1973), in which the Supreme Court of Puerto Rico urged the courts “to examine with caution the particular circumstances of each case to make the determination of whether there has been an extinctive novation or not.” Id., at 392. Speaking for the court, Justice Rigual stated: The novatory will — the intention to extinguish the obligation substituting it by a new one — is thus an indispensable requisite for the novation. The will must be manifest; it cannot be based on equivocation. Art. 1158 [of the Civil Code, P.R. Laws Ann., tit. 31, § 3242] uses radical language: “it is necessary that it should be so expressly declared”. Id., 101 D.P.R. at 390 (translation supplied). The element of the expressly declared novatory will is absent in the case at bar. The payment plan agreed upon by Martinez and the Bank did not result in an incompatibility of two obligations. The evidence before the Court shows that the purpose of the plan or agreement worked out by the parties was to aid Martinez to meet his obligations and the Bank to collect the amounts due and owing on the loans. The Bank retained the same notes executed by Martinez in 1975 while he was married to Amieiro. The extension of the term given to Martinez for payment of the loans did not affect the nature of the obligations and did not constitute a novation. Miranda Soto v. Mena Ero, 109 D.P.R. 473, 479-480 (1980); Colón & Cía., Inc. v. Registrar, 88 P.R.R. 77, 80-81 (1963); Caribe Lumber Corp. v. Marrero, 78 P.R.R. at 835. The changes in the terms of payment of the obligations were not sufficient by themselves to produce an extinctive novation because they were not incompatible with the original obligations, a fundamental element required by Article 1158 of the Civil Code of Puerto Rico, P.R.Laws Ann., tit. 31, § 3242. Marina Ind., Inc. v. Brown Boveri Corp., 114 D.P.R. 64, 76-77 (1983). The letter of guarantee executed by Am-ieiro contains language amounting to a relinquishment with respect to all of the acts which may be deemed a novation. Amieiro cannot now disclaim liability when she relies on that very same document for her contention that her liability, if any, is limited by the terms thereof. FDIC v. Panelfab Puerto Rico, Inc., 739 F.2d 26, 30 (1st Cir.1984). The defense also implicates federal law. In order for the pledge agreement dated September 9,1977, or any other agreement, to be effective in releasing Amieiro of her obligations, the four conditions of 12 U.S.C. § 1823(e) would have to be met. There is no evidence in the record that the board of directors or its loan committee ever approved such an agreement. Defendants’ contention that the original obligation of Martinez was extinguished by novation has no basis either in fact or in law. C. Statute of Limitations Defendants contend that the action of the FDIC on the notes executed by Martinez on September 11, 1975, is time barred by the applicable statute of limitations. The notes in question were acquired by the FDIC on March 31,1978, which then filed the original action against Martinez and Amieiro on July 3, 1980. Actions by the FDIC on assets purchased from the receiver of a closed bank are subject to the six-year statute of limitations provided by 28 U.S.C. § 2415(a) if the claim sounds in contract, and to the three-year period if it sounds in tort, 28 U.S.C. § 2415(b). FDIC v. Bird, 516 F.Supp. 647, 650 (D.P.R.1981); FDIC v. Cardona, 723 F.2d 132, 134 (1s Cir.1983); FDIC v. Barrera, 595 F.Supp. 894, 989 (D.P.R.1984). The acquisition by the FDIC of the claims asserted in this action, would not have revived any claims which were already time barred by the applicable Puerto Rico statute of limitations. FDIC v. Consolidated Mortgage and Finance Corp., 805 F.2d 14, 17 n. 4 (1st Cir.1986); FDIC v. Bird, 516 F.Supp. at 650. It is necessary therefore to ascertain whether the claims at issue were time barred when the FDIC acquired same. 1. The action on the promissory notes The law of Puerto Rico establishes two different periods of prescription for actions on promissory notes depending on whether the note is commercial or non-commercial. Actions on commercial notes are subject to the three-year term fixed by Article 946 of the Commerce Code, 10 L.P.R.A. § 1908, while a non-commercial note is subject to the fifteen-year period of prescription provided by Article 1864 of the Civil Code, 31 L.P.R.A. § 5294. FDIC v. Barrera, 595 F.Supp. at 898; Mediterranean Inv. Corp. v. Rodríguez, 575 F.Supp. 268, 269 (D.P.R.1983). If the notes executed by Martinez on September 11, 1975, are non-commercial, then the FDIC would have until September 11, 1990, to bring the action in accordance with the limitations period established by Article 1864 of the Civil Code. The situation would be different if, as defendants contend, the notes are commercial in nature and therefore governed by the three-year limitations statute of the Commerce Code. Two conditions must be met in order to establish the commercial nature of a loan under the law of Puerto Rico, to wit: 1) that one of the contracting parties be a merchant; and 2) that the proceeds of the loan were destined to commercial transactions. Article 229 of the Commercial Code of Puerto Rico, 10 L.P.R.A. § 1651; FDIC v. Cardona, 723 F.2d at 133-134; FDIC v. Barrera, 595 F.Supp. at 898; Mediterranean Inv. Corp. v. Rodríguez, 575 F.Supp. at 269. The fact that a bank is one of the parties to a loan does not necessarily render the loan mercantile in nature. Banco de Puerto Rico v. Rodríguez, 53 P.R.R. 430, 433 (1938); FDIC v. Cardona, 723 F.2d at 135; Mediterranean Inv. Corp. v. Rodríguez, 575 F.Supp. at 269. Article 229 of the Commercial Code is to be taken in conjunctive form and therefore both circumstances set forth by said article must be proven in order to establish the commercial character of a loan. Luengo v. Fernández, 83 P.R.R. 613, 615-616 (1961); Franceschi v. Rivera, 44 P.R.R. 640, 641 (1933); FDIC v. Barrera, 595 F.Supp. at 898; FDIC v. Marco Discount House, 575 F.Supp. 730, 732 (D.P.R.1983). “The statute of limitations is ordinarily an affirmative defense and the elements that give rise to the limitation of an action must be pleaded and proved by the defendant.” FDIC v. Cardona, 723 F.2d at 134-135. Defendants here did not discharge their burden of presenting evidence of the commercial nature of the notes at issue in this case. Defendants’ reliance on certain letters, loan offerings and other documents of the Bank referring to the loans evidenced by the notes executed by Martinez as “commercial” is misplaced. Id., at 135. Enrique Sanz, a former officer of the Bank, testified that all loans which were not installment or mortgage loans were classified as “commercial loans” by the Bank. Such classification was for operational purposes and not an attempt at classification pursuant to legal definitions. Even when a loan is requested for commercial purposes, absent proof that it was ultimately destined for commercial activities, it cannot be concluded that it is a commercial loan. Santa-Pinter, J.J. “Comentarios al Código de Comercio” § 90, at 134 (1964). The failure of defendants to discharge their burden of establishing the commercial nature of the transactions is a sufficient ground for overruling the defense of limitations. Nevertheless, based on the evidence presented by plaintiff relative to the disposition of the proceeds, we conclude that the obligations are non-commercial in nature. The evidence in question, in the form of cancelled checks, bank statements and oral testimony uncontroverted by the defendants, established that the proceeds of the loans taken by Martinez were used by Martinez for personal purposes. The notes executed by Martinez on September 11, 1975, in the amounts of $200,000 and $150,-000 did not involve further disbursements by the Bank, but merely represented the balance due and owing by Martinez on the two lines of credit. The nature of the loans, therefore, will be determined by the use given to the funds borrowed by Martinez on the lines of credit which remained unpaid and evidenced by the notes executed in 1975. The uses given to the proceeds of the loans appear in numbers 12-15 of the findings of fact. Ante, at 857. The investments, loans and payments of obligations made by Martinez with the proceeds of the loans are not acts of commerce nor can they be considered commercial transactions within the scope of the Code of Commerce. See, Blondet v. Garau, 47 P.R.R. 820 (1934); Salgado v. Villamil, 14 P.R.R. 437 (1908). At the time of the loans in question Martinez was president of a banking institution. There is no evidence that he was engaged in the business of trading in stocks. Neither the expressed purpose of the loan, nor the utilization to which the proceeds are put, by itself is sufficient to determine the nature of the transaction. All of the attendant circumstances must be examined. Barceló & Co., S. en C. v. Olmo, 48 P.R.R. 239, 241 (1935). The circumstances in which the loans at issue here were granted convincingly point to a noncommercial character of same. In Banco de Puerto Rico v. Rodríguez, 53 P.R.R. 166 (1983), a commercial bank brought action on a note, the proceeds of which had been disbursed from time-to-time to the maker at his convenience. The maker acknowledged having utilized part of the proceeds for personal use and part for commercial purposes. The Supreme Court of Puerto Rico held that the loan was a non-commercial transaction in view of the personal use made of part of the funds, upholding the findings of the trial court on this point. The Court further stated: Upon examining the evidence in the light of the law, of the foregoing decisions, motives of the legislators, and commentaries, we find the case indeed somewhat doubtful. The courts are inclined not to apply the statute of limitations unless the mercantile character of the transaction clearly appears, since it involves a relatively short term and debts whose existence is not even questioned. Following this trend and giving the judgment of the trial judge all the weight to which it is entitled, we must give plaintiff the benefit of the doubt.... 53 P.R.R. at 173. The situation in the instant case is very similar to that of FDIC v. Francisco Inv. Corp., 638 F.Supp. 1216 (D.P.R.1986) (proceeds of loan to corporation used to acquire shares of stock of another corporation). Finding that the loans evidenced by the notes at issue in this action are non-commercial in nature, the applicable statute of limitations is that of 15 years as prescribed in Article 1864 of the Civil Code, 31 L.P.R.A. § 5294. The action having been filed within the 15-year term, the defense of prescription is without merit. Assuming, arguendo, that the loans were governed by the three-year statute of the Commerce Code, a finding not supported by the evidence presented at trial, the period was interrupted by Martinez’ acknowledgements of the debt in various correspondence with the Bank (Exhs. S, CC, EEE), and in his financial statement as of January 31, 1976, and dated March 22, 1976. (Exh. 0). FDIC v. Cardona, 723 F.2d at 136-137. The action was alive at the time that the FDIC acquired the notes on March 31, 1978. The six-year period of limitations for actions on contract provided by 28 U.S.C. 2415(a) did not commence to run until the date when the FDIC acquired the notes from the receiver of the closed bank. See, FDIC v. Roldán Fonseca, 795 F.2d at 1108-1109 (1st Cir.1986); FDIC v. Cardona, 723 F.2d at 134. Therefore, the action on the notes brought in 1980 was timely. 2. The action against Vilmasor, Lu-maral and the other individual defendants The limitations defense asserted with respect to the action based on the concealment of properties of Martínez and Amieiro is grounded on another section of the Civil Code of Puerto Rico. Under the law of Puerto Rico the action to rescind contracts made in fraud of creditors must be brought within four years. Article 1251 of the Civil Code of Puerto Rico, 31 L.P.R.A. § 3500. The Code does not specify the time from which the four-year term commences to run. Manresa, commenting on article 1299 of the Spanish Civil Code, similar to article 1251 of the Civil Code of Puerto Rico, opines that the term is computed from the date of execution of the contract. 8 Manre-sa, “Comentarios al Código Civil Español”, at 808 (6th ed. 1967). Said interpretation follows the criteria embodied in Article 1301 of the Spanish Civil Code, similar to Article 1253 of the Civil Code of Puerto Rico, which fixes a similar four-year term for actions for nullity of a contract and specifically states that in cases of error or deceit or falsity of consideration the term shall begin to run from the date of the consummation of the contract. 31 L.P.R.A. § 3512. The four-year term had not expired when the unacceptable assets of the Bank were purchased by the FDIC on March 31, 1978. Both the mortgage liens created in May 1975 and the conveyance of real properties to Vilmasor in December 1976 occured within four years of March 31, 1978. Since the statute of limitations applicable to actions brought by the FDIC in its corporate capacity is governed by 28 U.S.C. § 2415, FDIC v. Bird, 516 F.Supp. at 650; FDIC v. Cardona, 723 F.2d at 134; FDIC v. Barrera, 595 F.Supp. at 898, it is necessary to determine whethe