LUIS FELIX BARED ESPINOZA

OCR transcription for search; preserved printed pages are authoritative

Cag

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

26

AOA2HENTICATED

(ReveSAA on 1]

GPOY

!

e:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main

Document Page 1 of 8

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

IN RE: LUIS FELIX BARED ESPINOSA, : CASE NO. 04-09172(ESL)
Debtor : CHAPTER 11

ANGELA LYNN ZAREAS, ADV. NO. 04-0298
Plaintiff :

v.

LUIS FELIX BARED ESPINOSA,
Defendant

OPINION AND ORDER

This case is before the court upon the debtor’s response to the court’s order to
show cause why this case should not be dismissed. For the reasons set forth below, the
debtor’s motion is denied and the case, as well as the adversary, are dismissed.

Background

Plaintiff and defendant/debtor were married and lived at Candina Reef
Condominium in Condado, Puerto Rico. Debtor had a. substance abuse problem and
sought treatment outside of Puerto Rico. Debtor was unable to maintain his employment
and became financially dependent upon his parents. Plaintiff and debtor had marital
problems and ultimately divorced. While separated from debtor, plaintiff began living at
the Condado condominium with her parents.

Debtor owned the Condado condominium prior to his marriage to the plaintiff. In
April, 2002, plaintiff filed for divorce; in May, 2002, debtor sold the apartment to his

parents; and in September, 2002, a final divorce decree was entered. Debtor borrowed

Casr

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

26

AO 72
(Rev. 8/82)

:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main

Document Page 2 of 8

nearly $339,970 from his parents during the period between April, 2002 and August,
2004. In September, 2004, debtor filed a petition for reorganization under chapter 11 of
the Bankruptcy Code.

To say that the relationship between plaintiff and debtor, and their respective
families, is contentious would be an understatement. In May, 2005, plaintiffs parents
filed a petition under chapter 7 of the Bankruptcy Code’. The parents of debtor herein
filed a motion in that case to lift the automatic stay in order to enforce an eviction
judgment obtained in the local court and, in September, 2005, plaintiff and her parents
were evicted from the Condado condominium.

Debtor’s petition includes three unsecured, non-priority creditors: (1) his father, in
the amount of $339,970.00; (2) plaintiff, in the amount of $28,990.00 for alimony and
$2,682.15 for medical expenses; and (3) Homero Gonzalez Lopez for $4,000.00 for his
ex-wife’s attorney’s fees. In terms of personal property, debtor’s schedules detail
$3,800.00 in clothing and jewelry, $12,716.00 in an individual retirement account,
$123,550.00 in an investment account, and $169,346.00 in accounts receivable from his
parents. Debtor’s schedules further indicate that he has no income and that his
expenditures are paid for by his parents. Debtors schedules also include five pending
legal actions, all involving the plaintiff herein and the debtor as parties. Debtor filed an
amended statement of financial affairs in October, 2004, indicating income from
employment in 2002 totaling $51,826.88, and income from his parents totaling

$257,654.74 between August, 2002 and August, 2004. Subsequently, debtor filed another

'Case no. 05-04759 (GAC).

Cage:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main
Document Page 3 of 8
amended statement of financial affairs in November, 2004, indicating employment
{ income of $5,159.79 in 2003.
2 Debtor’s operating reports for September, 2004 - January, 2005 indicate no
; income and no expenses. No operating reports have been filed since February, 2005.
4
Debtor’s father, Luis Bared San Martin, filed proof of claim no. 1 in the amount
5
6 of $331,969.95 on September 20, 2004, and an amended proof of claim no. 2 in the
7 amount of $339,969.95 on November 4, 2004”. Debtor’s ex-wife (and plaintiff herein),
8 Angela Zareas, filed proof of claim no. 3 in the amount of $145,120.00 on January 4,
: 2005. The United States Trustee filed an objection to claims no. 1 and 2, arguing that
10
Luis Bared San Martin is an insider of the debtor under 11 U.S.C. §§ 101 (31) and (45)
11
° and that the proofs of claim do not include supporting documents as required by Fed. R.
43 Bankr. P. 3001(c). On January 24, 2006, this court entered an order granting the
14 objection to claim. Thus, the only remaining proof of claim is that of Angela Zareas, to
15 which debtor filed an objection on September 23, 2005.
16
A preliminary pre-trial hearing was held on December 2, 2005. At the hearing the
17
court noted that an examination of the record indicates that debtor has no income and no
18
49 real property, no plan has been filed, and this matter is essentially a two-party dispute
20 between the debtor and his ex-wife. At its conclusion, the court entered an order to the
21 debtor to show cause why the bankruptcy petition should not be dismissed for the reasons
22
93 The claims register for this case incorrectly lists these claims as being filed by Veronica
Zareas, an error which led to this court’s misstatement at the hearing on December 2,
24 2005 (dkt. # 49 at p. 10). Nevertheless, the trustee’s objection, and this court’s order
granting the objection, correctly stated that the claims were filed by Luis Bared San
25 Martin, and said error is not determinative to the issues herein.
26 3
AO 72
(Rev. 8/82)

AO 72
(Rev. 8/82)

Cag

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

26

B:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main

Document Page 4 of 8

stated in open court.

In his reply, the debtor argues that his case should not be dismissed because,
despite his personal problems in the past, his financial rehabilitation is feasible, he has
assets and anticipates gainful employment upon finishing medical school. Debtor
explains that his income decreased from $51,000 in 2002 to zero in 2003 because he
began attending medical school. Debtor alleges that his petition was filed in good faith
and with the purpose of reorganizing his finances. Debtor attributes the plethora of —
filings in his bankruptcy case to the contentious relationship with plaintiff and between
their families.

Discussion

Section 1112 of the Bankruptcy Code provides that upon request of a party in
interest, and after notice and a hearing, the court may convert a case under chapter 11 to a
case under chapter 7, or dismiss the case, whichever is in the best interest of the creditors
and the estate, for cause, including “continuing loss to or diminution of the estate and
absence of a reasonable likelihood of rehabilitation”. 11 U.S.C. § 1112(b)(1).._ The

decision as to whether to convert a case from chapter 11 to chapter 7 is one which is

firmly within the court’s discretion. 7 Lawrence P. King, et al., Collier on Bankruptcy

q 1112.04 (15" ed. rev’d 2005); In re Consolidated Pioneer Mortgage Entities, 248 B.R.

368 (9" Cir. BAP 2000). “In order to avoid the costs of chapter 11 in cases in which they

3Section 1112(b) was amended by the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005, Pub. L. 109-8, 119 Stat. 23 § 442 (Apr. 20, 2005), effective for
all cases filed on or after October 27, 2005; hence, the amended provisions to not apply
herein.

Cage:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main
Document Page 5 of 8
are not justified, section 1112(b) was designed to provide the court with a powerful tool
1 to weed out inappropriate chapter 11 cases at the earliest possible stage.” Collier,
2 q 1112.04[2] at 1112-23.
; Section 1112 does not define “cause”, but lists several examples which may
justify conversion or dismissal. Collier, J 1112.01[2]. The list is not exclusive; the court
; may convert or dismiss a case for other reasons so long as they are sufficient to
7 demonstrate cause. Id. The commentator notes that “each of the general categories of
8 cause enumerated in the statute involves a situation in which it is typically unlikely that
° the benefits of reorganization will be achieved within a reasonable amount of time or at
" an acceptable cost”; in other words, the circumstances in which it is unreasonable for the
; chapter 11 case to proceed. { 11 12.04[3] at 1112-24. Thus, in cases where there is a
43 continuing loss to, or diminution of, the chapter 11 estate, and an absence of a reasonable
14 likelihood of rehabilitation of the chapter 11 debtor, it is appropriate to convert the case to
15 chapter 7 or dismiss it, because it is unlikely that the debtor’s reorganization will be
6 achieved in a reasonable amount of time or at a reasonable cost, unless the court finds
; that there are mitigating circumstances which show that reorganization can be achieved
19 within acceptable parameters.
90 The “diminution of the estate and lack of rehabilitation” standard set forth in
21 § 1112(b)(1) has two basic requirements: first, whether the debtor has a negative cash
22 flow or declining asset values, and second, whether there is a reasonable likelihood that
° the debtor’s losses can be stemmed and the business placed back on a solid financial
24
95 footing within a reasonable amount of time. An examination of debtor’s operating
26 5
AO 72
(Rev. 8/82)

Case:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main

AO 72
(Rev. 8/82)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Document Page 6 of 8

reports shows that debtor has no cash flow - no income, nor expenses.

However, the court must consider whether there is any reasonable prospect for
reversing the debtor’s losses and revitalizing the debtor as a viable business enterprise.
The standard is whether the debtor’s business prospects justify continuance of the
reorganization effort. Collier, § 1112.04[5][a][ii]. The court must determine whether the
causes of the debtor’s continuing losses can be corrected and whether the debtor is
capable of remedying the problem - which, in most cases, depends on whether the debtor
has formulated a reasonably detailed business plan, or can do so within a reasonable
amount of time. Id. The debtor’s opportunity to reorganize should be balanced against
the protection of the creditors and the needs of the chapter 11 system as a whole. Id.
“However honest in its efforts the debtor may be, and however sincere its motives, the
District Court is not bound to clog its docket with visionary or impractical schemes for
resuscitation.” Id., citing Tennessee Publishing Co. v. American Nat’] Bank, 299 U.S.
18, 22, 57 S. Ct. 85, 81 L. Ed. 13 (1930).

The debtor has not established that he has the means to rehabilitate his financial
situation nor a plan for doing so. Debtor has only stated that he is a medical school
student. He has not presented to this court that he has any financial prospects which
justify the continuance of his chapter 11 case. There is no indication that any potential
benefits of reorganizing debtor’s business affairs under chapter 11 will be achieved
within a reasonable amount of time or at an acceptable cost to the creditors and the
bankruptcy system.

Other examples of cause for conversion or dismissal of a case in § 1112(b)(1) are

Cage:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main
Document Page 7 of 8
the inability to effectuate a plan and unreasonable delay which is prejudicial to creditors.

1 The former examines whether it is reasonable to expect that a plan can be confirmed

2 within a reasonable amount of time. Collier, § 1112/04[5][b]. “If it appears that a debtor
; has filed a chapter 11 case ostensibly to reorganize, but has no reasonable prospects of

’ confirming a plan, then there would be no point in permitting the chapter 11 case to

5

5 continue and cause would exist to convert or dismiss the case.” Id., citing In re Abijoe

7 Realty Corp., 943 F.2d 121, 128-29 (1* Cir. 1991) (debtor’s “abysmal prospects for

8 rehabilitation” warranted dismissal). Debtor herein has not even filed a plan, contrary to
9 the provisions of 11 U.S.C. § 1121(b), which provides a debtor with an exclusive period
® of 120 days to file a plan of reorganization. As a general rule, if the debtor fails to file a
. plan of reorganization within the time frames set by section 1121, cause exists to convert
13 or dismiss the case. Collier, § 1112.04[S][1] at 1112-48. Furthermore, the record shows
14 that debtor has no income, and has not had any income since 2003, instead living off of
15 the donations of his parents. Debtor has no basis for funding a plan.

6 In evaluating whether there has been unreasonable delay which is prejudicial to
, creditors, the court must consider whether the debtor has engaged in some form of

19 unreasonable delay, and whether the delay has been prejudicial. Collier, { 1112.04[5][c].
20 “The most obvious example of an unreasonable delay that may be prejudicial to creditors
21 is the unjustified failure to file a reasonable plan of reorganization in a timely fashion.”
22 Id. at 1112-44. This case has been pending nearly 17 months, yet debtor has not proposed
° any plan of reorganization, has not filed a disclosure statement, and has ceased filing
; operating reports. Furthermore, debtor did not appear for his deposition scheduled for
26 7
(ov 8/82)

Casp:04-09172-ESL11 Doc#:58 Filed:01/31/06 Entered:02/01/06 09:34:55 Desc: Main
Document Page 8 of 8

November 14, 2005, which has resulted in further delays in the progress of the adversary

1 proceeding. There is sufficient basis for the court to conclude that there has been an

2 unreasonable delay which is prejudicial to debtor’s two creditors (only one of which has
; filed a proof of claim).

4

The court has not been dissuaded from it’s conclusion at the December 2, 2005

hearing, that this is a two-party dispute between the debtor and his ex-wife, stemming

7 from their contentious divorce proceedings, and is not properly a matter of financial

8 reorganization under the Bankruptcy Code; rather, the bankruptcy court is simply being

9 used as another forum for the parties to air their grievances.
10

Conclusion
11
° The court finds that it is in the best interest of the estate and the creditors to
43 dismiss this case. Accordingly, case no. 04-09172, as well as adversary proceeding no.
14 04-0298, are hereby dismissed. The clerk shall enter judgment accordingly.
1 Additionally, the clerk of the court is hereby directed to correct the claims register
16
in this case, as indicated in footnote 2.
17
SO ORDERED.

18
19 In San Juan, Puerto Rico, this 27" day of January, 2006.
20

a1 Ue. b nile
- QUE S. LAMOUTTE

United States Bankruptcy Judge

23
24
25
26
8
AQ 72
(Rev. 8/82)