MALDONADO ROSADO et al v. CRUZ COLON et al

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Casel08-00153-ESL Doc#:20 Filed:11/14/08 Entered:11/14/08 14:31:18 Desc: Main
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1 IN THE UNITED STATES BANKRUPTCY COURT
> FOR THE DISTRICT OF PUERTO RICO
3
4 | IN RE:
> RAFAEL A. MALDONADO ROSADO : Case No. 01-06989(ESL)
6 | OMAYRA OLMO RODRIGUEZ :
Chapter 13 :
7 Debtors.
8
9 || RAFAEL MALDONADO ROSADO :
OMAYRA OLMO RODRIGUEZ : Adv. No. 08-00153
10 :
Vv.
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12 | VICTOR MANUEL CRUZ COLON; :
LYDIA CASTRO SOBERAL; : Dischargeability of Debt
13 | THEIR CONJUGAL PARTNERSHIP; : Violation of Discharge
LUIS M. MORELL MORELL; : Injunction and Civil Contempt

14 || JANE DOE AND THEIR CONJUGAL
PARTNERSHIP; JOHN DOE; XYZ CORP.

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16 Defendants.

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18 PRELIMINARY INJUNCTION

19 Before the court is the Urgent Motion Requesting Order Staying Eviction (the “Urgent

20 || Motion”) filed by Rafael Maldonado Rosado and Omayra Olmo Rodriguez (“Debtors”) on

71 October 20, 2008 (Docket No. 4). Debtors seek that this court enter an order staying the eviction

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action against them pending the outcome of the abovecaptioned proceeding. A temporary

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restraining order was entered on October 20, 2008 (Docket No. 5) and a hearing on the

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45 || preliminary injunction was scheduled for October 31, 2008. Defendants did not oppose or
26 || otherwise reply to the Urgent Motion. Furthermore, Defendants failed to appear at the hearing

27 |! held on October 31, 2008. Debtors showed that Defendants were duly served with a copy of the
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AUTHENTICATED /
U.S. GOVERNMENT.
INFORMATION
GPO

complaint, summons, the Urgent Motion and the Temporary Restraining Order, and orally

Case:

Oo CO “SON

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proffered the facts in the complaint establishing a prima facie case for a discharge injunction
violation.

For the reasons set forth below, this court hereby grants the Urgent Motion and enjoins
Defendants from continuing with the eviction of Debtors from their residence until final

judgment on the merits of this proceeding is entered.

Factual Background

On June 19, 2001 Debtors filed a petition for relief under Chapter 13 of the Bankruptcy
Code; Case No. 01-06989, Debtors listed co-defendants Victor Manuel Cruz Colon and Lydia
Castro Soberal as unsecured creditors in their Schedule F filed with the Chapter 13 petition on
June 19, 2001, with a $15,000 unsecured claim. (Case 01-06989 Dkt. No. 1) Also filed on that
date the Statement of Financial Affairs question 4 shows the Superior Court tort action brought
against Debtors by co-defendants Mr. Cruz Colon and Ms. Castro Soberal, giving rise to the
unsecured claim listed on Schedule F. The master address hst of the case filed on June 19, 2001
includes Mr. Cruz Colon and Mr. Luis Morell Morell, Esquire, their counsel in the state court
tort action. The Order and Notice for Meeting of Creditors was notified to creditors including
Mr. Cruz Colon on June 26, 2001. Such notice provides that in order to have a claim allowed
and participate in the distribution of any dividend, a creditor must file a claim in duplicate. Mr.
Cruz Colon and Ms. Castro Soberal did not file a proof of claim in Debtors’ bankruptcy case.

Debtors’ Chapter 13 Plan was confirmed on October 26, 2001. Thereafter, on October
24, 2005, the Discharge Order was entered.

Co-defendants Mr. Cruz Colon and Ms. Castro Soberal continued in their collection
efforts against Debtors of the referred unsecured debt included in Debtors Schedule F,

presumptively discharged in the Chapter 13 case. A judicial sale in execution of judgment

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entered in the tort action took place. At the judicial sale co-defendants Mr. Cruz Colon and Ms.
Castro Soberal adjudicated to themselves Debtors’ residence. Debtors were informed by a
Superior Court of Bayamon Marshall that they are to be evicted of their residence on October 21,
2008. Debtors’ residence is described within the books of the Registry of Property, First Section
of Arecibo as follows:

URBANA: Solar identificado con el numero 2 dei Bloque F del plano de

inscripcion parcen de la Urbanizacion Estancias de la Sabana, Bo. Sabana Hoyos

de Arecibo, Puerto Rice. Tiene una cabida de 350.04 metros cuadrados,

equivalentes a 0.089 cuerdas. Colinda por el NORTE, con la calle #2 de la

Urbanizacion en una distancia de 11.70 metros; por el SUR, con el Solar F-19 en

una distancia de 14.00 metros; por el ESTE con el solar F-1 en una distancia de

25.00 metros; y por el OESTE con el Solar F-3 en una distancia de 25.00 metros.

Enclava una casa de una sola planta constituida en el Hormigon Armado y Bloques de
Concreto.

Conclusions of Law
Fed. R. Bankr. P. 7065, which makes Fed. R. Civ. P. 65 applicable in adversary
proceedings before the bankruptcy court, provides for the issuance of injunctions by the.
bankruptcy court. Subdivision (a)(1) of the rule provides that “[t]he court may issue a
preliminary injunction only on notice to the adverse party.” The purpose of a preliminary

injunction is to maintain the status quo pending the determination of the action. 10 Alan N.

Resnick, Henry J. Sommer, Collier on Bankruptcy, ] 7065.02 (15" Ed. Rev’d, 2007). Generally,
courts will look at a four-factor test upon determining whether to grant a preliminary injunction,
to wit, “(1} [w]hether the plaintiff has shown a strong or substantial likelihood or probability of
success on the merits; (2) [w]hether the plaintiff has shown irreparable injury; (3) [w]hether the
issuance of a preliminary injunction would cause substantial harm to others; (4) [w]hether the
public interest would be served by issuing a preliminary injunction. 7d. Debtors have established

a likelihood of success, irreparable injury if the eviction action is allowed to continue, that the

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Case:

TA WN Bp

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injunction will net cause substantial harm to others and that the public interest will be served if
the injunction is issued.
Conclusion

Having Debtors satisfied the standard for a preliminary injunction, the court hereby orders
that, pending a final judgment in this action, Co-Defendants herein are restrained, stayed and
enjoined from taking any further action or proceedings of any kind against Debtors, in particular,
proceed with the eviction of Debtors’ residence as described above.

SO ORDERED.

In San Juan, Puerto Rico, this 14" day of November 2008.

ENRIQUE S. LAMOUTTE
U.S. Bankruptcy Judge