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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF PUERTO RICO In Re Case No. 12-06448-BKT13 JANETTE MACHADO RAMOS RE: Ch. 13

URGENT MOTION FOR IMMEDIATE SURRENDER OF THE MUNICIPALITY OF ISABELA’S PUBLIC PREMISES TO THE HONORABLE COURT: COMES

NOW

Creditor

Autonomous Municipality of Isabela,

Puerto Rico (“Isabela”), through the undersigned attorneys, and very respectfully, STATES, ALLEGES and PRAYS as follows: I.

PROCEDURAL BACKGROUND

1.

On July 13, 2012, Isabela filed a Complaint in State

Court against Janette Machado Ramos (hereinafter referred to as ADebtor@ or “Ms. Machado”) with regard to an eviction case for lack of payment. (State Civil Case No. ACCI201200332, Court of First Instance Aguadilla Section). 2.

On

August

16,

2012,

Ms.

Machado

filed

a

Voluntary

Bankruptcy Petition under Chapter 13 of the Bankruptcy Code. Dkt. 1. 3.

Among other claims listed in the schedules, Ms. Machado

included as an “Executory Contract or Unexpired Lease”, the Lease Agreement between herself and Isabela, which had been terminated by Isabela on February, 29 2012. See Dkt. 1 at p. 30. Furthermore,

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Ms. Machado also included as an Aunsecured non-priority claim@, the aforementioned

lease

agreement

as

“Rent

Arrears”

(debt

acknowledgment). See Dkt. 1 at p. 29. 4.

However, given that the Lease Agreement between Ms.

Machado, and Isabela was a nonresidential lease and had been terminated pre-petition, it is not part of the estate and should be excluded from the schedules. Furthermore, and for the same reasons (that we are dealing here with a pre-petition terminated nonresidential lease) according to Section 362(b)(10) of the Bankruptcy Code, the filing of the bankruptcy petition does not stay the proceedings at state court. 5. 541(b)(2)

As we will see, in light of the clear language of Section of

the Bankruptcy Code,

Isabela

requests

that the

aforementioned lease from the estate be excluded. II.

FACTUAL BACKGROUND

6.

On September 7, 2010, the mayor of Isabela, Carlos O.

Delgado Altieri (hereinafter “Mayor Delgado”) in representation of Isabela and Debtor signed a lease agreement regarding Kiosk k-2 which is nonresidential commercial property, located at “Centro Empresarial Playero” in Isabela, Puerto Rico. Exhibit 1.1 7.

On

the

same

date,

Damaris

Rodríguez

Mercado,

the

Municipal Secretary of Isabela, certified that the contract was

1 On the same date of this motion, leave to file exhibits in Spanish has been submitted to this Court in order to comply with this Court’s rules and/or orders. Said leave requests permission to submit the corresponding certified translation

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duly registered at 10:00 a.m. in File 21, page 33 of the Registry of Contracts for the fiscal year 2010-2011, and a copy of said contract was sent to the Comptroller’s Office of Puerto Rico under the register number 2011-000173 and number of delivery 202116. 8.

Due to Ms. Machado’s continuous breach of rent payments

regarding “kiosk k-2”, on September 15, 2011, Ms. Machado and Rosario

M.

Villanueva

Bravo

(hereinafter

“Ms.

Villanueva”),

Director of Finance and Budgets for the Municipality of Isabela, signed

a

payment

schedule

agreement

in

order

to

payoff

the

aforementioned arrears or accrued debt owed by Ms. Machado and payable to Isabela. In the agreement, Ms. Machado admitted that she owed Isabela $1,473.73 with regard to unpaid rent of the nonresidential property previously mentioned. At said moment, Ms. Machado affirmed that she did not posses the financial capacity to payoff said debt in its entirety. Ms. Machado voluntarily accepted to pay $245.63 per month starting on October 2011 up until March 2012 (6 month period). Exhibit 2. 9.

On September 15, 2011, the Administration Secretary of

Isabela recorded in its files that a payment plan schedule was established as to the nonresidential property, Kiosk K-2 rented to Ms. Machado. Payments were to be made on the 15th of every month starting on October of 2011 and expiring on March of 2012. A copy of the agreement was given to Ms. Machado. Exhibit 3.

of said documents within the next twenty (20) days. See Dkt. 16

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On November 21, 2011, Mayor Delgado in representation of

Isabela and Ms. Machado signed a non-residential leasing agreement in order to extend the leasing period of the non-residential property, Kiosk K-2 located in Centro Empresarial Playero of Isabela. Exhibit 4. 11.

On December 13, 2011, the Office of Finance and Budgets

of Isabela sent a letter to Ms. Machado identified as a First Warning with regards to Kiosk K-2. In said letter it was brought to the attention of Ms. Machado that she had accrued a debt of $866.26 which

corresponded

to

the

previously

agreed

payment

schedule

between the parties and the current due payment of the nonresidential lease. The aforementioned amount had to be paid during a five day period after having received said letter. If the payment was not received during the five day period the case would be referred to the legal division of Isabela and the payment schedule and/or plan would be terminated. Furthermore the total amount of debt would have to be paid immediately. Said letter was signed by Ms. Villanueva. Exhibit 5. 12.

On February 23, 2012, another letter was sent to Ms.

Machado entitled “Rent Collection and Breach of Payment Schedule�. In said letter Ms. Machado was informed that she owed $2,482.49 to Isabela due to the unpaid lease installments of Kiosk K-2. The letter also stated that Isabela had tried to find solutions to the payment problems of the lease subscribed by Ms. Machado and that 4


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after a hearing on September 8, 2011, a payment schedule was established which Ms. Machado did not comply with, therefore owing $982.49. Because of the repeated efforts by Isabela to try to collect debts accrued and concerning the premises rented by Ms. Machado, the latter did not qualify for another payment schedule. The letter stated as well that she had to visit the Internal Revenue Office of Isabela in order to liquidate her debt during the next 10 days after having received said letter. Furthermore, the letter stated that if she did not comply with the letter’s requests then legal action would be taken against her. Additionally the letter stated that termination of her leasing contract would be recommended.

This

recommendation

was

the

consequence

of

her

continued breach of rent payments. The termination invokes the 6th clause

of

the

non-residential

leasing

contract.

Said

clause

establishes that in the event that lessee fails to pay one month’s rent installment, then lessor will have just cause to terminate the present leasing agreement, once it notifies said breach to lessee via certified mail at a known address in conformity with this agreement or an official change of address notified to the Finance Department or by personal service of summons of the second party of the agreement. Exhibit 4 at p. 4. The letter was signed by Ms. Villanueva and sent to the Municipal Internal Revenue Office of Isabela. Exhibit 6.

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On February 29, 2012, Mayor Delgado sent a letter by

certified mail to Ms. Machado unequivocally stating his intent to terminate the non-residential leasing agreement related to Kiosk K2 of the Centro Empresarial Playero. In said letter, Ms. Machado was informed that she owed Isabela $2,482.49 because of unpaid lease payments and/or non-residential leasing arrears. The letter stated that the Office of Finance and Budgets had made various efforts in order to recollect the debt owed by Ms. Machado but was unsuccessful in doing so. Consequently the letter informed Ms. Machado that the contract was being terminated immediately. During the next thirty (30) days after having received said letter Ms. Machado had to vacate the premises. Exhibit 7. 14.

On March 19, 2012, a minute of a meeting held at 9:00

a.m. between Ms. Machado and the Director of Finance and Budgets, Ms. Villanueva. Ms. Machado requested said meeting due to the fact that she had received a letter were she was requested to vacate the premises of Kiosk K-2. In the meeting, Ms. Machado indicated that she could resolve the situation and pay the debt she owed. Ms. Villanueva informed Ms. Machado that she could pay the debt she owed but that the contract had been terminated based on the sixth (6th) clause of the non-residential property leasing contract. Ms. Machado stated that the business she had in said property was the only means by which she could pay her debt. Ms. Villanueva reminded Ms. Machado that on September 8, 2011, she had been conceded a

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payment schedule and/or plan. Ms. Villanueva informed Ms. Machado that the amounts of the payment schedule had to be paid in full and that they could not accept partial payments due to what was previously accorded by the parties in said payment schedule. Mrs. Villanueva stated that the lease agreement had been terminated, and that Ms. Machado had to vacate the premises in order to avoid future complications and legal processes. Exhibit 8. 15.

On April 9, 2012, a minute from a subsequent meeting held

between Ms. Machado and Ms. Villanueva was drafted and issued in which essentially Isabela’s position was reaffirmed as to its decision regarding the termination of Mrs. Machado’s nonresidential lease agreement. Exhibit 9. 16. statement

In addition, on July 19, 2012, Ms. Machado gave a sworn were

she

admitted

that

Isabela

terminated

her

nonresidential lease agreement and that she would vacate the premises on August 14, 2012. Exhibit 10. 17.

On March 19, 2012 a certification which was sent to the

Commonwealth of Puerto Rico’s Comptrollers Office was signed by the Mayor Delgado. Said certification indicated that the lease of the non-residential leasing agreement related to Kiosk K-2 had been terminated. Exhibit 11. III. APPLICABLE

LAW

a. Executory Contracts

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Section 365 of the Bankruptcy Code authorizes the trustee

or debtor in possession to reject, assume or assign executory contracts and unexpired leases. 11 U.S.C. § 365. The term executory contract is not defined by the Bankruptcy Code but an overwhelming majority

of

courts

have

adopted

the

definition

provided

by

Professor Countryman which states that an executory contract is “a contract where the obligations of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance could constitute a material breach excusing the performance of the other”. N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 517 (1984). b.

Property of the Estate

19.

The mere filing of a petition for relief under the

Bankruptcy Code creates an estate which entails all legal and equitable interest of the debtor in property, wherever located or by whomever held, at the beginning of the case. Bankruptcy, Volume 5, § 541.04.

Collier on

The Code’s definition of property

of the estate is broad, including both tangible and intangible property, causes of action, and any other conceivable form of proprietary interest. 20.

Id.

This definition of property of the estate is subject to

the limitations imposed by Section 541(b) and (c)(2). Section 541(b)(2) clearly provides that any interest of the debtor in a terminated or expired lease of nonresidential real property is not 8


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property of the estate. Moreover, under Section 541(b)(2) any interest of the debtor in a lease of nonresidential real property expired after the commencement of the bankruptcy case ceases to be property of the estate at the moment the lease expires. 21.

To the extent an interest is limited in the hands of the

Debtor, it is equally limited as property of the estate. In other words, the Code does not expand debtor=s rights over others beyond whatever rights existed at the petition date, and thus, the trustee can assert no greater rights than those the debtor had at the commencement of the case.

Section 541 cannot revive a property

entitlement lost pre-petition or terminated by its own terms after the commencement of the case. 22.

Accordingly, Section 362(b)(10) of the Code expressly

excludes from the automatic stay any action by a lessor to the Debtor under a nonresidential real property that has terminated by the

expiration

of

the

stated

term

of

the

lease

before

the

commencement of or during a case under this title to obtain possession of such property. Collier on Bankruptcy, Volume 3, ยง 365.04[3][6]. Simply stated, the stay of certain creditor actions afforded by Section 362 upon the filing of a petition in the bankruptcy court, does not help Debtor here.

The automatic stay

does not include contracts that have been terminated by the time the bankruptcy petition is filed.

Likewise, it does not toll the

running of time under a contract and thus it does not prevent

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automatic termination of the contract.

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See Johnson v. First

National Bank of Montevideo, 719 F.2d 270, 273 (8th Cir.1983), cert. denied, 104 S.Ct 1015, 79 L.Ed.2d 245 (1984).

See also, e.g., In

re Anne Cara Oil Co, 32 B.R. 643, 647-48 (Bkrtcy.D.Mass.1983); In re Nashville White Trucks, 5 B.R. 112, 117 (Bkrtcy.M.D.Tenn. 1980). c. 23.

Pre-petition Termination Notice

As previously stated, in order for an executory contract,

such as a non-residential property leasing contract, to be assumable pursuant to Section 365(f), the leasing agreement must have been an Aexecutor contract@ at the time the bankruptcy petition was filed. In re Herbert, 806 F.2d 889 (9th Cir. 1986); Moody v. Amoco Oil, 734 F.2d 1200 (1984). 24. commercial

If

the

non-debtor

property

leasing

party

to

agreement

a or

nonresidential any

other

and/or

executory

contract terminates the same prior to the commencement of the bankruptcy case, the mere filing of a petition for relief does not alter the terms of such termination.

When a valid termination has

taken place, the bankruptcy filing does not revive or renew the executory contract. 25.

Therefore, under the aforementioned circumstances the

non-residential leasing agreement or executory contract is assumable and property of the estate only if said contract is still valid and in effect prior to the filing of the bankruptcy petition. However, once the contract has been terminated, it is no longer property of 10


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the estate and the non-debtor party is free to move to repossess the real property leased. IV. 26.

DISCUSSION When a bankruptcy petition is filed an estate is formed

where all legal and equitable interest of the debtor in property are thus included.

Estates include executory contracts which in

turn are defined as contracts

where both the bankrupt and other

party have so far unperformed that the failure of either to complete performance could constitute a material breach excusing the performance of the other. N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 517 (1984). 27.

Nevertheless, the Code imposes limitations with regards

to what can be included in a debtor’s estate. Section 541(b)(2) of the Code clearly provides that any interest of the debtor in a terminated or expired lease of nonresidential real property is not property of the estate. Property which is not included in a debtor’s estate, such as, executory contracts which have been duly terminated before the filing of a bankruptcy petition, cannot be assumed,

rejected

or

assigned

by

the

trustee

or

debtor

in

possession pursuant to Section 365 of the Bankruptcy Code. 28.

This is so because property which is not included in a

debtor’s estate can not therefore be assumed, assigned or rejected by the corresponding trustee or debtor in possession. 29.

Debtor’s entitlement to operate the premises stemmed from 11


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the extension of a non residential lease of real property located in Isabela, Puerto Rico, which was entered on November 21, 2011. The agreement was duly terminated on February 29, 2012, due to Debtor’s reiterated noncompliance with the terms and conditions of said agreement. 30.

Isabela

duly

and

diligently

responded

to

Debtor’s

repeated breaches of its duty to pay by sending letters which clearly stated that debtor was not complying and therefore was breaching the 6th clause of the nonresidential leasing agreement signed by the parties. 31.

Isabela also repeatedly informed Debtor that she needed

to comply with its obligation under the lease agreement in order to continue occupying the premises. Due to Debtor’s continuous breach of the nonresidential leasing agreement and payment schedule and/or plan, the case was referred to Isabela’s legal division and Office of Internal Revenue. Additionally one of the alluded letters informed Debtor that a recommendation as to its non residential leasing agreement had been drafted and said recommendation entailed the termination of said agreement. These letters were signed by the Director of Finance and Budgets of Isabela, Ms. Villanueva. 32.

On February 29, 2012, a letter was sent by certified mail

and signed by the Mayor Delgado, to Debtor which clearly stated that the nonresidential leasing agreement related to Kiosk K-2 had been terminated and that Debtor needed to evacuate the premises in

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order to avoid further complications and/or legal matters. Said letter detailed Debtor’s arrears and indicated that Isabela had made various unsuccessful efforts as to recollecting said arrears and/or accrued debt. The letter went on to state that Debtor had thirty (30) days to vacate the premises. 33.

Following said letter two meetings were held between Ms.

Villanueva in representation of Isabela and Debtor in which the latter was informed that her contract had been terminated and that if she wished to do so, she could payoff the debt she had accrued with Isabela due to failure of monthly lease payments. A month prior to the filing of Debtor’s bankruptcy case, Debtor subscribed a sworn statement which states that the non residential leasing agreement it had entered with Isabela had been terminated. 34.

All

these

events

clearly

establish

that

the

non

residential leasing agreement entered between Debtor and Isabela on November 21, 2011, had been terminated previous to the filing of the bankruptcy petition and thus is not part of the estate. Section 541(b)(2)

clearly

establishes

that

non

residential

leasing

agreements which are terminated before the filing of a bankruptcy petition will not be considered part of an estate. This specific section is clear and is wholly applicable to the case at hand. There is substantial documentation that establishes that Isabela validly

terminated

the

lease

agreement

and

reaffirmed

said

termination in a clear, unequivocal and diligent manner. Therefore

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and pursuant to Section 541(b)(2) of the Code said nonresidential leasing agreement can not be considered part of debtor’s estate. Consequently, Section 365 of the Code cannot be entertained in this case given that Debtor does have in its estate an executory contract which can be rejected, assigned or assumed. 35.

Given the factual premise of this case Debtor has no

entitlement and or right to retain possession of Kiosk K-2.In addition and by its own terms, Section 362(b)(10) of the Bankruptcy Code allows Isabela to seek repossession of the premises of Isabela since we are dealing with a pre-petition terminated non-residential lease. At this moment, Debtor remains unlawfully in possession of the premises. The continued presence of Debtor at the Premises has a direct impact over the prospects of leasing the same to a third party. In fact, Isabela is currently hindered in its ability to exercise its right to derive benefit from a property it rightfully owns (such as collecting rent) since the premises are occupied by Debtor. Moreover, the premises that Debtor presently occupies is public property which causes damages to the sound and adequate administration of resources which should be managed in a way that benefits the people of the municipality of Isabela. WHEREFORE, Isabela respectfully requests that this Honorable Court holds that the lease agreement is not part of the estate, cannot be assumed, and that Ms. Machado must immediately surrender the premises.

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RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, on September 27, 2012. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this same date we electronically filed the foregoing with the Clerk of the Court using the CM/ECF system,

which

will

send

notification

of

such

filing

to

attorneys who have filed appearances in this case. SEPULVADO & MALDONADO, PSC ATTORNEYS & COUNSELORS AT LAW Attorneys for the Autonomous Municipality of Isabela Citibank Tower, 19th Floor 252 Ponce De León Avenue San Juan, P.R. 00918 Tel. 787.765.4949 Fax. 787.294.0073 /s/ Lee R. Sepulvado Ramos USDC-PR No. 211912 leesepulvado@gmail.com /s/ Albéniz Couret Fuentes USDC-PR No. 222207 acouret@smlawpr.com /s/ José Julián Blanco Dalmau USDC-PR 229514 jblanco@smlawpr.com

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1

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF PUERTO RICO

2 3

IN RE: CASE NO. 12-06448 BKT

4 5

JANETTE

MACHADO RAMOS

Chapter 13

6 7 8

XXX-XX-0579

9 FILED & ENTERED ON 09/28/2012 10 Debtor(s) 11 12

ORDER

13 The Debtor to reply by noon on Friday October, 5,2012 to the Urgent motion 14 for immediate surrender of the Municipality of Isabela's Public Premises filed 15 by Municipality of Isabela (Docket No. 13). 16 SO ORDERED. 17 18

San Juan, Puerto Rico, this 28 day of September, 2012.

19 20 21 22 23 24 25

Brian K. Tester U.S. Bankruptcy Judge

B120000  

Bankruptcy

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