CH Properties, Inc. v. Comite De Vecinos De Isla Verde (In re CH Properties, Inc.)

381 B.R. 20, 2007 U.S. Dist. LEXIS 95379
District Court, D. Puerto Rico·Decided December 19, 2007·No. Civil Nos. 06-1802(JAG), 06-2260(JAG)·Published·Cited by 1 cases

Opinion

OPINION AND ORDER

GARCIA-GREGORY, District Judge.

Pending before the Court are a set of consolidated bankruptcy appeals filed by CH Properties, Inc. (“CH” or “appellant”). For the reasons set forth below, the Court DISMISSES CH’s appeals of the Bankruptcy Court’s Opinions and Orders in Case 05-06118(ESL) and Case 06-00050(ESL).

[22] FACTUAL AND PROCEDURAL BACKGROUND1

These consolidated appeals arise from decisions of the United States Bankruptcy-Court for the District of Puerto Rico in the case In re CH Properties Inc., Case No. 05-06118(ESL), and in the adversary proceeding CH Properties Inc. v. Comité de Vecinos de Isla Verde, Case No. 06-00050(ESL).

The underlying bankruptcy case, In re CH Properties Inc., Case No. 05-06118(ESL), commenced on July 1st, 2005, when CH filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 1101-1174. Since that date, CH has been managing its affairs as debtor in possession pursuant to 11 U.S.C. § 1107. On July 21st, 2005, CH filed a “Motion to Assume Lease,” requesting the Bankruptcy Court to grant the assumption of a lease contract between CH and the Municipality of Carolina, by virtue of which CH would develop a condo-hotel project in the Isla Verde area of Carolina, Puerto Rico. CH claims that it is indispensable for its reorganization that it be allowed to assume the lease agreement, because said agreement is the principal asset of its estate. Comité de Vecinos de Isla Verde (“Comité” or “Appellee”) and other parties opposed the request alleging that CH could not assume the lease agreement because, in order to do so, the agreement had to be valid and that, prior to the filing of the bankruptcy petition by CH, the lease agreement had been declared null and void ab initio by the Superior Court of Puerto Rico.2

On January 12th, 2006, the Bankruptcy Court issued an Opinion and Order to the effect that the lease agreement is the only asset of CH’s estate, and that its validity at the time of the filing of the petition is essential for a determination as to CH’s request to assume the lease agreement, as well as to CH’s reorganization in bankruptcy. The Bankruptcy Court, however, decided to discretionarily abstain from considering the validity of the lease agreement until the issue was finally decided by the Courts of Puerto Rico.3 It is uncontested that CH never appealed the Bankruptcy Court’s Opinion and Order of January 12th, 2006. In fact, CH acknowledged that it opted not to appeal said decision. (Docket No. 21 at 3 ¶ 7).

On February 28th, 2006, the adversary proceeding CH Properties Inc. V. Comité de Vecinos de Isla Verde, Case No. 06-00050(ESL), was commenced when CH filed a complaint in Bankruptcy Court against: 1) Comité; 2) Amigos del Mar, [23] Inc.; 3) Guardadores de Puerto Rico; 4) Ms. Maritza Bodee; 5) Mr. Osvaldo Romero; 6) Mr. Roberto Delgado; and 7) several unknown defendants. The complaint alleges that defendants invaded the parcel of land on which CH would develop its condo-hotel project, and that defendants were interfering with CH’s possession and control of the strip of land. CH claims that defendants’ alleged actions resulted in a deprivation of the use and enjoyment of said parcel and loss of income, and that these circumstances will lead to CH’s demise as a debtor-in-possession and dooms its financial reorganization. CH thus requested: 1) that defendants be directed to turn over the possession of the land; 2) that defendants be found in breach of the automatic stay provided for in 11 U.S.C. § 362(a); 3) damages; and 4) injunctive relief.

On March 1st, 2006, CH filed a motion for preliminary injunction requesting an order enjoining the defendants from interfering with the possession and control of the disputed parcel, and instructing them to vacate said property. On June 30th, 2006, the Bankruptcy Court denied CH’s request for preliminary injunctive relief. The Court noted that an adjudication of the injunction request would contravene its January 12th, 2006 decision in the underlying bankruptcy case of discretionarily abstaining from considering the validity of the lease agreement until the matter is finally decided by the Courts of the Commonwealth of Puerto Rico. On July 7th, 2006, CH filed in the Bankruptcy Court a Notice of Appeal from the order denying CH’s request for injunctive relief. The Bankruptcy Court notified the parties that it had received the record on appeal, assigning it case number 06-1802.4

Back in the underlying case (that is, In re CH Properties, Inc., 05-6118(ESL)), CH filed a “Restated Motion to Assume Lease Contract” on October 9th, 2006. On October 25th, 2006, the Bankruptcy Court denied said motion, restating its reasoning for exercising discretionary abstention and noting, once again, that an adjudication of said request would contravene the January 12th, 2006 Opinion and Order. On October 31st, 2006, CH filed in the Bankruptcy Court another Notice of Appeal to the District Court, this time from the order denying CH’s restated request to assume the lease agreement. On December 14th, 2006, the Bankruptcy Court transmitted the record on appeal, and the District Court acknowledged receipt of the appeal on the next day, assigning it case number 06-2260.

On January 17th, 2007, at the request of Comité, the two appeals were consolidated in case 06-1802.5 Subsequently, on January 31st, 2007, Comité filed a Motion to Dismiss the consolidated appeals alleging lack of jurisdiction pursuant to CH’s fai[24] lure to comply with Fed.R.Bankr.P. 8002(a) and 8009. Comité essentially claims that the only matter raised in each of the appeals is the petition to overturn the Bankruptcy Court’s Opinion and Order of January 12th, 2006, whereby said Court decided to abstain from considering the validity of the lease agreement pending a final disposition of that issue by the Courts of the Commonwealth of Puerto Rico. Thus, Comité contends that CH was required to file a notice of appeal of the abstention order by January 22nd, 2006, as required by Fed.R.Bankr.P. 8002(a). Comité further argues that CH cannot rely on appealing the June 30th and October 25th, 2006 decisions, which reiterate the Bankruptcy Court’s determination to abstain, to indirectly appeal the January 12th, 2006 decision.6

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CH Properties, Inc. v. Comite De Vecinos De Isla Verde (In re CH Properties, Inc.), 381 B.R. 20, 2007 U.S. Dist. LEXIS 95379 (prd 2007).

381 B.R. 20 (CH Properties, Inc. v. Comite De Vecinos De Isla Verde (In re CH Properties, Inc.)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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