In re: Oscar Torres de Jesus

• Court: United States Bankruptcy Court, D. Puerto Rico
• Decided: January 23, 2012
• Docket: 10-11717
• Status: Unknown

Opinion

entepe” 1 IN THE UNITED STATES BANKRUPTCY COURT eD FOR THE DISTRICT OF PUERTO RICO ei □□ NRE: : CASE NO. 10-11717 (ESL) ait 23 ape OSCAR TORRES DE JESUS CHAPTER 11 □□□□□ 4 □□□ BI Debtor : y.8- BAN PLE 5 . Ath jue 6 OPINION AND ORDER 7 Before this court is secured creditor Banco Popular de Puerto Rico’s (“BPPR”) Motion to g Dismiss and Supplement to Motion to Dismiss (Docket Nos. 80 & 252) on the grounds of Debtor’s g |substantial or continuing loss and/or diminution of the estate and absence of likelihood of 19 |jrehabilitation and other equitable grounds, and the Opposition to Motion to Dismiss filed by Debtor 11 (Docket No. 121). Several other motions and replies regarding Debtor’s request for cash collateral 12 also supported and/or argued BPPR’s Motion to Dismiss (Docket Nos. 82, 83, 126, 127, 174, 13 239, 252). Several hearings were held wherein the Motion to Dismiss was argued (Docket Nos. 14 123, 58, 86, 175, 176, 191, 211 & 241), which have provided further information regarding Debtor’s 15 {performance pre and post petition. After considering all the arguments, pleadings and evidence 16 ||submitted, based in the totality of the circumstances and the travel of the case, for the reasons stated 17 |herein BPPR’s Motion to Dismiss, as supplemented, is granted. 18 Procedural Background 19 On December 14, 2010, Debtor filed a voluntary Chapter 11 petition, schedules, statement 29 financial affairs and other related documents (Docket No. 1). BPPR is Debtor’s main secured 21 |\ereditor. See Schedule D (Docket No. 1, pp. 9-11), and Proofs of Claims Nos. 2-1, 8-1, 9-1 and 23-1. 22 On December 23, 2010, BPPR filed an Urgent Motion ... Requesting Entry of Order 23 ||Prohibiting Use of Cash Collateral (Docket No. 7) alleging that it is a secured creditor in an 24 ||approximate amount of $12,041,132.74 (principal and interests as of December 20, 2010), that it has 95 ||properly perfected a first priority position over all of Debtor’s inventory, equipment, investment 26 |property, accounts receivable, cash and other related intangibles, and that it had offered no 27 |jauthorization to Debtor to use any cash collateral nor had Debtor offered any adequate protection for 2g |[the use of the same. BPPR requested the court to prohibit Debtor’s request for the use of cash collateral without judicial authorization upon the provision of adequate protection under 11 U.S.C.

1 363(c)(3). On December 27, 2010, the Court entered an order granting BPPR’s Urgent Motion 2 |jwithout prejudice of Debtor moving the court pursuant to 11 U.S.C. § 363(c)(2)(B) and Fed. R. 3 |Bankr. P. 4001(b) (Docket No. 11). 4 On December 28, 2011, the Debtor filed an Urgent Motion Requesting Use of Cash Collateral 5 |(Docket No. 13) under 11 U.S.C. §§ 363(c)(2)(B) and 363(c)(3). He based his request primarily on 6 |fhis inability to purchase feed for the cattle due to lack of cash to pay for it and the supplier’s alleged 7 |\denial of granting him any further credit. (Id., 3) He further alleged that the use of cash collateral 8 jis essential for him to continue operating his business and produce funds to pay his obligations and 9 lloperate the milking equipment, especially because he has no other substantial source of funds. (Id., 10 |/[ 11) In regards to the adequate protection to BPPR, Debtor argued that there is sufficient equity 11 [cushion in his business and real property when considering their combined value to their liens and 12 jencumbrances. He also requested that his Urgent Motion be disposed of on an expedited basis 13 |[pursuant to Puerto Rico Local Bankruptcy Rule (“LBR”) 9013-1(f) (Docket No. 14). 14 On December 29, 2010, the court issued an Amended Order & Notice regarding Debtor’s 15 Urgent Motion for cash collateral and scheduled a hearing to consider it for January 4, 2011 (Docket 16 16). Objections to the Urgent Motion were ordered to be filed on or before January 3, 2011. 17 (Compliance with F. R. Bankr. P. 4001(b) and LBR 4001-2 was also ordered. 18 On January 3, 2011, BPPR filed a Reply to Debtor’s Urgent Motion Requesting Use of Cash 19 |\Collateral (Docket No. 22) informing of the extrajudicial negotiations between BPPR and Debtor for 20 interim use of cash collateral and requested until January 5, 2011 to file a joint request to that 21 jleffect. BPPR also alerted the court that Debtor’s expressions in his Urgent Motion regarding the 22 |lequity cushion were based on outdated appraisals and that Puerto Rico’s economy had changed since, 23 |lwhich has severely affected the value of properties. Thus, BPPR alleged that it may be an under- 24 jlsecured creditor. 25 A hearing on Debtor’s Urgent Motion was held on January 4, 2011. The parties informed 26 |that they were attempting to reach an agreement for Debtor’s use of cash collateral, specifically for 27 ||him to purchase of additional cattle to increase his milk production. BPPR in particular informed that 28 main consideration for that agreement was that Debtor provided the purchase orders and/or

1 |idelivery receipts that evidenced the specific amounts he requested, and to that Suiza Dairy, Debtor’s 2 |[primary milk purchaser, be ordered to send the weekly milk quotas directly to a marginal account for 3 (Debtor controlled by BPPR. An interim agreement was informed to have been reached during the 4 lhearing whereby BPPR consented to provide Debtor $10,000 per week to purchase cattle feed, 5 |jsubject to Debtor submitting a purchase order, invoice and/or delivery receipt. In addition, BPPR 6 |jalso consented to provide Debtor up to $2,5000 weekly for the payroll of Debtor’s employees and 7 $1,000 weekly for the purchase of diesel or gasoline, provided that Debtor also disclosed the 8 [corresponding purchase orders, delivery receipts and/or invoices. Pursuant to said interim agreement, 9 Debtor would direct Suiza Dairy to deposit revenues from his weekly milk quotas into a marginal 10 |laccount controlled by BPPR. The court approved the interim agreement as informed by BPPR and 11 Debtor and ordered them file it in writing within 30 days. (Docket Nos. 22 & 31) 12 On February 8, 2011, without the parties having filed the joint interim agreement as ordered, 13 |Ithe court issued an Order & Notice to schedule a Chapter 11 status conference for February 22, 2011. 14 |The day before, on February 7, 2011, BPPR filed a Motion to Prohibit Use of Cash Collateral 15 |(Docket No. 42) informing that Debtor had not provided the stipulated documents and/or information 16 |ifor the interim agreement regarding the use of cash collateral and that even though Suiza Dairy had 17 |been notified of the interim agreement approved by the court --which included direct payment from 18 Suiza Dairy to BPPR-- the former had been issuing payments under the milk quotas directly to 19 ||Debtor, who had in turn disposed of the funds remitted to him in amounts above and beyond the ones 20 |laccepted and agreed upon by the parties. Under those circumstances, BPPR sustained that it did not 21 |iconsent to the use of cash collateral and insisted to be provided with exact and detailed accounting 22 llof all funds Debtor had received from Suiza Dairy since he first filed for bankruptcy as well as a full 23 jjand accurate accounting of the Debtor’s disposal of all such funds with evidence of all purchase 24 |lorders, invoices and/or delivery receipts relating to the operation of his business. BPPR requested 25 order prohibiting Debtor from using its cash collateral without its consent outside the scope of the 26 |interim agreement perpetuated at Docket No. 31 (January 4, 2011 Hearing Transcript). 27 The status conference was held on February 22, 2011. See Docket No. 44 (Minutes). BPPR 28 informed its conformity to extend the interim agreement as long as the funds from Suiza Dairy were

1 |ldeposited in a marginal account controlled by BPPR and that the Debtor provided the invoices and 2 |jevidence of his business operations, purchase orders and related documents. Debtor argued that if 3 could purchase enough cattle to meet the milk quotas, he could meet all his obligations and pay 4 100% of general unsecured creditors, considering that there was sufficient equity cushion. The court 5 |inoted that creditors were not in a position to consider that allegation because Debtor had provided 6 |ino evidence to that effect: no recent appraisals were proffered and no monthly operating reports 7 (“MOR”) had been filed. Consequently, the court ordered Debtor to file the overdue MORs and 8 |llikewise ordered both parties to file a written agreement on the use of cash collateral as initially 9 jlordered at the January 4, 2011 hearing. Debtor also informed that he was in the process of obtaining 10 |jalternate sources of financing and that he also was finalizing a formal agreement with BPPR in 11 |regards to the use of cash collateral. 12 On February 25, 2011, Debtor filed a Motion in Compliance with Order (Docket No. 45) 13 |;whereby he submitted the documentation he provided to BPPR. On February 28, 2011, Debtor filed 14 Emergency Motion Requesting Order (Docket No. 49) alleging that BPPR had refused to pay 15 [checks for feed and diesel, even though there were funds in the operating marginal account. Debtor 16 jrequested that an order be entered instructing BPPR to allow the immediate disbursement of 17 $32,773.69 for payment of feed and medicines for the cattle, diesel, payroll, small incidental living 18 ljexpenses and to allow payment of an additional $16,360 for the week ending March 4, 2011. An 19 Emergency Motion (Docket No. 48) was also filed by Debtor the same day requesting that the 20 lkmergency Motion Requesting Order (Docket No. 49) be disposed of on an emergency basis. 21 That same day, on February 28, 2011, the court issued an Order & Notice (Docket No. 50) 22 [ruling that Debtor’s Emergency Motions (Docket Nos. 48 & 49) did not place the court in a position 23 authorize the use of cash collateral, inter alia, because the requirements of LBR 4001-2(b) were 24 |not disclosed and thus a hearing was scheduled for March 11, 2011. 25 On March 1, 2011, Debtor filed an Amended Emergency Motion Requesting Order and 26 |Request for Reconsideration (Docket No. 51) in which he acknowledged having made certain 27 |ladditional payments from those detailed in the order granting the interim agreement between Debtor 28 jland BPPR (Docket No. 31 -January 4, 2011 Hearing Transcript) and further requested immediate

1 |Ipayments for feed and medicine for the cattle, diesel and payroll which BPPR had refused to disburse 2 the amounts of $32,773.69 and an additional $16,360 for the week ending March 4, 2011. Debtor 3 admitted not having provided BPPR with a detailed accounting of the requested sums and thus 4 |lrequested until March 8, 2011 to provide it. 5 On March 4, 2011, BPPR filed an Opposition to Emergency Motion Filed by Debtor on 6 March 1, 2011 (Docket No. 54) alleging that contrary to the interim agreement for cash collateral, 7 Suiza Diary had been issuing payments under the milk quota directly to the Debtor, who in turn had 8 |idisposed of the funds remitted directly to him in amounts above and beyond those agreed upon by 9 June 4, 2011, as accepted by the court (Docket No. 31 - January 4, 2011 Hearing Transcript). 10 |IBPPR also alleged that it had prepared and provided Debtor with a draft of a joint cash collateral 11 }lagreement and order, that Debtor had not responded or reacted to it and that had he timely responded, 12 Emergency Motion could have been avoided. BPPR also averred that the accounting documents 13 |provided by Debtor were in total disarray and that they showed that Debtor had incurred in numerous 14 |lpersonal expenses. BPPR requested that Debtor’s Emergency Motion be denied and the entry of an 15 llorder to order compel him to submit to BPPR the invoices and other accounting documents 16 |supporting the use of cash collateral in an organized fashion as provided in the January 4, 2011 Order 17 (Docket No. 31) and to tender a detailed proposed budget for any future use of cash collateral. 18 On April 6, 2011, Debtor filed a Motion Requesting Release of Certain Liens over Milk Quota 19 jland Substitution of Collateral in Favor of BPPR (Docket No. 70). He again requested cash collateral 20 |[to purchase heads of cattle and make some minor improvements to the farm. To that effect, he sought 21 {10,000 quarts of milk quota to be released from BPPR’s lien, which would allegedly allow him to 22 [purchase 95-110 heads of cattle. He also proposed to replace BPPR’s collateral based on the actual 23 |ivalue of the released quota, referring to the heads of cattle to be purchased. That same day, Debtor 24 an Urgent Motion Requesting Use of Cash (Docket No. 71), in which he rehashed his earlier 25 |jlarguments regarding the use of cash collateral and insisted that BPPR was over-collateralized. He 26 jlalso argued that the cash generated after the filing of the petition is not part of BPPR’s collateral and 27 |\further requested to be allowed to use BPPR’s collateral so that he could cover his business expenses 28 jand purchase additional cattle to increase milk production. In addition, Debtor also filed an Urgent

1 Motion Requesting that [BPPR] be Held in Contempt of Court (Docket No. 73) averring that BPPR 2 not complied with the agreement approved by the Court. The specific order under which Debtor 3 |jsustained BPPR’s contempt was the March 11, 2011 hearing, which Minute Entry was filed at Docket 4 58. 5 On April 7, 2011, the court scheduled another a hearing to consider Debtor’s aforementioned 6 motions for cash collateral for April 12, 2011 (Docket No. 76). The next day, on April 8, 2011, 7 (Debtor filed a Motion Requesting Release of Certain Liens over Milk Quota and Substitution of 8 |\Collateral in Favor of BPPR (Docket No. 77) which is the same entry as Docket No. 70'. Also on 9 April 8, 2011, BPPR filed a Motion to Dismiss (Docket No. 80), an Opposition to Debtor’s Urgent 10 |\Motion Requesting that [BPPR] be Held in Contempt (Docket No. 82) and an Opposition to Debtor’s 11 Urgent Motion Requesting Cash Collateral (Docket No. 83). In its Motion to Dismiss (Docket No. 12 BPPR seeks dismissal of the instant case under Section 1112(b) of the Bankruptcy Code, 11 13 U.S.C. § 1112(b), sustaining that there is no legitimate bankruptcy purpose for the following reasons: 14 |i(a) substantial or continuing loss and/or diminution of the estate and absence of likelihood of 15 |rehabilitation; (b) Debtor’s failure to file a disclosure statement or to file or confirm a plan within a 16 |reasonable period of time; and © other equitable grounds. In its Motion to Dismiss, BPPR sought 17 dismissal of the case, not conversion to a Chapter 7. In its Opposition to Debtor’s Urgent Motion 18 ||Requesting that BPPR be Held in Contempt of Court (Docket No. 82), BPPR claimed that it was 19 Debtor who had not complied with the interim agreement having made unallowed disbursements 20 \\from the payments that he received directly from Suiza Dairy, which were not deposited into the 21 jlagreed marginal account. BPPR also alleged that it had not received one single payment from Debtor 22 |Isince the inception of this case. In its Opposition to Debtor’s Urgent Motion Requesting Use of Cash 23 ||Collateral (Docket No. 83), BPPR reiterated to have prepared and sent Debtor’s counsel a draft of 24 |la joint motion and a proposed order for the use of cash collateral since January 3, 2011 to no avail. 25 also claimed to be an undersecured creditor, rather than oversecured, pursuant to appraisals it had 26 |recently conducted upon Debtor’s properties. On April 11, 2011, BPPR filed an Opposition to 27 28 ' A Notice of Corrective Entry was entered at Docket No. 78 regarding the refiling of Docket No. 70.

1 |\Debtor’s Motion Requesting Release of Certain Liens over Milk Quota and Substitution of Collateral 2 Favor of BPPR (Docket No. 85) claiming that Debtor’s request did not propose to pay BPPR’s 3 |iclaim in full but rather intends to alter BPPR’s state law property rights by eliminating the lien, to 4 |which it opposed. 5 On April 12, 2011, the court held the hearing to consider Debtor’s request for cash collateral, 6 |jthe release of certain liens over the milk quota and substitution of collateral and BPPR’s motion to 7 |idismiss. See the Minute Entry at Docket No. 86. Since no written agreement had been filed, both 8 |BPPR and Debtor again informed during the hearing once again that they had reached an interim 9 |jagreement whereby Debtor would withdraw its motion of contempt and BPPR would allow Debtor 10 use $18,000 per week without BPPR’s permission. The court once more ordered the that the 11 jlagreement be filed in writing. As to the rest of the contested matters (Docket Nos. 70, 71, 77 & 83), 12 |the court ruled that it would schedule an evidentiary hearing after the parties had the opportunity to 13 |supplement their respective oppositions. The evidentiary hearing for cash collateral and release of 14 liens was scheduled for June 9, 2011 (Docket No. 89) and the one to argue BPPR’s Motion to 15 (Dismiss was scheduled for June 13, 2011 (Docket No. 90). All were continued on July 13, August 16 [115-167 & 31(Docket Nos. 144, 153, 156, 175, 176, 191). 17 On April 27, 2011, BPPR filed a Motion in Compliance with Court Order Re: BPPR’s 18 |Supplemental Opposition to Debtor’s Motion to Release Liens over Milk Quotas (Docket No. 101) 19 |lopposing to the sale of the milk quota as proposed by Debtor on the grounds that it does not have 20 |jadequate protection and requested an order for Debtor to consider and/or seek other means of post- 21 |[petition financing that will not alter or impair BPPR’s existing liens and/or secured position. 22 On April 28, 2011, BPPR filed a Supplement to [its] Opposition to Debtor’s Urgent Motion 23 |\Requesting Use of Cash (Docket No. 105) contending that the funds Debtor had been generating from 24 |jthe sale of the post-petition produced milk are subject to its lien and thus constitutes its cash collateral 25 * During that August 16, 2011 hearing, Banco Santander (“Santander”), another secured creditor, informed 27 || its support to BPPR’s Motion to Dismiss (Docket No. 80). Notwithstanding, Santander later filed a Motion for Relief From Stay Under 11 U.S.C. Section 362[e] on October 4, 2011 (Docket No. 209), which was granted at the hearing 28 held on November 1, 2011 upon stipulation by the parties (Docket No. 221).

1 jjunder 11 U.S.C. § 522(b). 2 On May 31, 2011, the US Trustee filed a Motion to Compel Filing of Monthly Operating 3 Reports and Payment of Quarterly Fees (Docket No. 123), alleging that Debtor had not filed the 4 monthly operating reports for the months of March and April 2011 and that the absence of the 5 linformation required in those reports renders the Trustee and creditors incapable of determining 6 llwhether debtors are engaged in actions which have resulted in loss or diminution of the estate 7 |jwarranting dismissal under Section 1112(b) of the Bankruptcy Code. The court granted the motion 8 lion June 30, 2011 (Docket No. 147). 9 On May 20, 2011, Debtor filed his Opposition to [BPPR’s] Motion to Dismiss (Docket No. 10 121). He contends that his business has substantially improved on a monthly basis since the 11 |beginning of the case due to the fact that he can now properly take care of his cattle. He also suggests 12 he has a plan of action that will allow him to meet all of his monthly obligations and pay BPPR 13 full, which was detailed in the Motion for Use of Cash Collateral & Motion for Substitution of 14 Collateral (Docket Nos. 70 & 71). He then argued that BPPR is oversecured based on recent 15 |lappraisals of his properties as filed at Docket No. 104 and that in the alternative, if BPPR’s appraisals 16 |lwere correct, then the BPPR’s secured debt would be bifurcated, which would result in Debtor paying 17 lower amount in a monthly basis. Debtor also sustained that BPPR failed to show that he does not 18 |lhave a chance of reorganizing its business and that if his request for use of cash and/or the 19 |jsubstitution of collateral was successful, then there should be no reason to dismiss the case for not 20 jfiling his disclosure statement. Finally, Debtor refuted that the case should be dismissed on equitable 21 |igrounds, especially considering his unencumbered assets, the alleged upward trend on his business 22 land its plan for increasing income further, all of which, according to him, show his ability to 23 |reorganize. 24 ~ On June 1, 2011, BPPR and Debtor filed two separate Joint Pretrial Reports: one regarding 25 |Debtor’s Motion for Use of Cash (Docket No. 126) and another for Debtor’s Motion for Substitution 26 jlof Collateral (Docket No. 127). In both Reports, Debtor and BPPR stipulated uncontested facts, 27 |largued their respective theories and offered their proposed findings of fact and evidence. Further 28 |jrelated motions were filed to submit documents (Docket Nos. 131, 132, 135, 136 & 137).

1 The evidentiary hearing commenced on June 9, 2011 (Docket No. 139) and continued on July 2 1113, August 15-16 & 31 (Docket Nos. 144, 148, 153, 156, 175, 176, 191). Oral testimonies and 3 documentary evidence were presented by Debtor and BPPR. 4 Meanwhile, on August 12, 2011, Debtor filed a Motion Withdrawing Request for Use f Cash 5 Requesting a Period to File a Motion Pursuant to § 506(a)(1) (Docket No. 159) claiming that 6 |lalthough his initial position was that BPPR was oversecured, in light of BPPR’s allegation that his 7 \properties were valued slightly over $6,000,000.00 he requested to stripdown BPPR’s secured debt. 8 ||Also on August 12, 2011, Debtor filed a Second Urgent Motion Requesting that BPPR Be Held in 9 ||\Contempt of Court (Docket No. 160). On August 15, 2011, Debtor filed an Urgent Motion Pursuant 10 Ito 11 U.S.C. § 502(A)() for Provisional and Permanent Use of Cash Collateral (Docket Nos. 163). 11 [Two days later, on August 17, 2011, he filed an Urgent Motion for Provisional and Permanent Use 12 lof Cash Collateral (Docket No. 168) and a Motion Pursuant to 11 U.S.C. $ 506(A)(L) (Docket No. 13 170). The next day, on August 18, 2011, the court scheduled a hearing for August 31, 2011 (Docket 14 |[No. 172) and denied Debtor’s Motion Pursuant to 11 U.S.C. § 506(A)(1) (Docket No. 170) for failure 15 comply with LBR 9013-1(h) (Docket No. 171). Debtor then proceeded to file an Amended Motion 16 |\Pursuant to 11 U.S.C. § 506(A)(1) on August 18, 2011 (Docket No. 173). Also on that day, BPPR 17 its Opposition to Use of Cash Collateral (Docket No. 174) and then on August 25, 2011, BPPR 18 |[filed its Opposition to Debtor’s Second Urgent Motion Requesting that BPPR be Held in Contempt 19 |(Docket No. 184). The next day, on August 26, 2011, BPPR and Debtor separately filed their 20 |lrespective Proposed Findings of Fact (Docket Nos. 185 & 186). On August 30, 2011, Debtor filed 21 Reply to Opposition to Urgent Motion for Provisional and Permanent Use of Cash Collateral 22 |(Docket No. 188). On September 1, 2011, BPPR filed an Opposition to Amended Motion Pursuant 23 11 U.S.C. $ 506(A) (Docket No. 192) and the next day Debtor filed a Reply thereto (Docket No. 24 1195). 25 Further hearings were held on October 5, November 1 and 29, 2011, regarding Debtor’s 26 |imotions for cash collateral (Docket Nos. 211, 221 and 241), On November 18, 2011, Debtor filed 27 Disclosure Statement (Docket No. 226) and Plan for Reorganization (Docket No. 227). 28 On November 21, 2011, Debtor filed another Urgent Motion for Provisional and Permanent

1 Use of Cash Collateral (Docket No. 229). This time Debtor offered for the first time to make 2 |fmonthly interest payments as adequate protection in the amount to $3,685.00 per week and requested 3 the marginal operational account, which is controlled by BPPR, be “unfrozen” and 4 |unrestricted’”’. He also proposed the interest rate to be 3% because he understands that rate to be 5 market rate for this type of loan*. He attached as Exhibit 2° his projections and proposed budget 6 |[from December 2011 through March 2012. On November 28, 2011, BPPR filed an Opposition 7 |ithereto (Docket No. 239), and reiterated its Motion to Dismiss (Docket No. 80) sustaining that 8 ||Debtor’s request to increase milk production must be confronted with his history of increased costs, 9 |inclement weather, ill cattle and revenues less than anticipated. BPPR also claims that Debtor’s 10 |projections are overly ambitious and unrealistic based on the actual record before the court and that 11 proposed plan is unfeasible, especially without additional outside financing. 12 Another hearing to consider Debtor’s request for cash collateral was held on November 29, 13 #2011 in which after considering the travel of the case, the court ruled that Debtor had failed to meet 14 burden for the use of cash collateral. See Docket Nos. 241 (Minute Entry) & 253 (Order). On 15 [December 2, 2011, Debtor filed his operating reports for the months of September and October 2011 16 (Docket Nos. 243 & 244) and on December 9, 2011, he filed the one for November 2011 (Docket No. 17 250). On December 12, 2011, Debtor filed a Motion for Reconsideration (Docket No. 251) on the 18 |[court’s denial for his latest motion for cash collateral (Docket Nos. 229, 241 & 253) alleging that he 19 |had increased his productivity and once again requested the use of cash collateral retroactively (to 20 in December 2011) through April 2012 in exchange of interest payments ($3,685.00 per week) 21 principal ($2,507.00 per week) starting the third month. In addition, he also requested 22 $60,000.00 for the purchase of additional cattle for the month of December 2011. 23 On December 14, 2011, BPPR filed a Supplement to Motion to Dismiss or Convert and 24 [-——-—-—enr— 25 * See Docket No. 229, p. 6, footnote 7. 26 * See Docket No. 229, p. 7, 426. 27 ° Exhibit 2, as filed, can hardly be read even with a magnifying glass because the font size is almost minimal and its resolution is extremely poor. Thus, reference made herein are based on the numbers the court can 28 || decipher from that document. 10

1 Opposition to Debtor’s Motion for Reconsideration (Docket No. 252) incorporating the most recent 2 jlactivity regarding other creditors including inter alia: Banco Santander’s lift of stay with respect to 3 lla mortgage on one of Debtor’s real property (Docket Nos. 209, 210, 212 & 221) and Doral Bank’s 4 |lift of stay with respect to another of Debtor’s real property (Docket Nos. 223, 224, 231 & 246). 5 |BPPR alleges that Debtor’s Disclosure Statement proposed Plan for Reorganization are deficient and 6 in view of the most recent activity of this case, Debtor is cannot present adequate protection and 7 |jcannot achieve a feasible plan within a reasonable period of time, and that orderly liquidation of 8 |Debtor’s assets is warranted under the control and guidance of a Chapter 7 Trustee®. BPPR also 9 jjopposed Debtor’s Motion for Reconsideration for the same reasons. 10 On December 15, 2011, Debtor’s Motion for Reconsideration was denied (Docket No. 253). 11 |The next day, on December 16, 2011, Debtor filed another Urgent Motion for Provisional Use of 12 ||Cash Collateral (Docket No. 256). This time, Debtor only requested cash collateral for operational 13 |jexpenses, not for additional cattle, and thus his projections for the months of December 2011 through 14 March 2012 (attached as Exhibit 3 thereto) are calculated without new cattle. 15 On January 10,2012, BPPR filed its Objection to Approval of Debtor’s Disclosure Statement 16 |\(Docket No. 274) alleging that Debtor’s Disclosure Statement did not satisfy the requirements of 17 Section 1125 of the Bankruptcy Code, 11 U.S.C. § 1125, that he failed to provide adequate 18 |linformation to creditors, and that his Plan for Reorganization is not confirmable. BPPR once more 19 |renewed its request for dismissal. 20 Stipulated facts (Docket Nos. 126, p. 9, and 127, p. 5) 21 1. Debtor is the owner ofa Dairy Farm located in Isabela, Puerto Rico, comprised of 237 22 acres of land. 23 2. Debtor is the owner of the property located in PR-2, Km 87.7, Pueblo Ward, Hatillo, 24 Puerto Rico. 25 2 ©)...” ° Although BPPR had expressly alleged in his Motion for Reconsideration (Docket No. 80, p. 3, footnote 1) 27 | that pursuant to 11 U.S.C. § 1112(c) the court may not convert a case from Chapter 11 to Chapter 7 when debtor is a farmer, months later, in its Supplement to Motion to Dismiss (Docket No. 252), BPPR requested for the first time 28 || that this case be converted. 11

1 3. Debtor is the owner of certain dairy farm equipment located in the dairy farm and the 2 same is unencumbered. 3 4. Debtor owns 130,587 quarts of milk quota. 4 Pertinent proven facts during the evidentiary hearings and the rest of the case docket’ 5 1. Debtor’s dairy farm is his main business and source of income. 6 2. Since Debtor filed for bankruptcy, he has been operating its business and managing 7 his affairs as debtor in possession (“DIP”). 8 3. Debtor has a milk production quota of 130,587 quarts, entitling him to sell that 9 amount of milk every 14 days at a price of $0.855 a quart which he delivers to Suiza 10 Dairy, Corp. 11 4. BPPR has various claims against Debtor in the total amount of approximately 12 $12,041,132.75, which are secured by real estate and personal property mortgages, 13 including a lien on Debtor’s milk quota, general intangibles, inventory, equipment, 14 accounts receivables and cash. [Proof of Claims Nos. 2-18-19-1 & 23-1]. 15 5. The value of BPPR's secured collateral is $6,318,000.00. This amount derived from 16 BPPR’s appraisal of his dairy farm in the amount of $3,218,000.00, plus $225,000.00 17 from debtor's interest in the commercial property belonging to the estate of his 18 deceased father (which has been mortgaged in favor of BPPR), plus $2,875,000.00, 19 which is the value of Debtor's milk quota. BPPR holds a lien over Debtor's cash 20 collateral through the pledging or assigning as collateral the milk quota. The 21 production of milk is also subjected to BPPR’s lien. 22 6. Since the filing of the Bankruptcy Petition, Debtor has not serviced his loans with 23 BPPR. 24 7. During the August 16, 2011 evidentiary hearing, Debtor presented the testimony of 25 Maricarmen Marquez Colon, who testified about her intention to purchase Debtor’s 26 dairy farm’s note from BPPR with a discount or refinance his debt through one of her 27 28 ” The last of these evidentiary hearings was held on November 29, 2011. See Transcript at Docket No. 271. 12

1 corporations. She also informed that the funds existed but due to certain electronic 2 wiring difficulties, they would be available the next Monday or Wednesday at the 3 latest. No further information regarding this transaction was ever provided to the 4 court by either Debtor or BPPR. 5 8. Debtor has not proposed to the court any method to acquire cattle other than 6 eliminating BPPR’s lien over the milk quota. 9. Debtor is currently producing about 50% ofhis quota and although he used to produce 8 100% of his quota, for the past 4 or 5 years he has been unable to do so. 9 10. There is virtually no unencumbered property belonging to Debtor available for the 10 distribution to unsecured creditors. 11 11. The cumulus of the litigation of the present case revolves mainly around Debtor and 12 BPPR, who is Debtor’s main creditor in this case, secured or unsecured. 13 12. Under his pre-petition obligations, Debtor is required to make mortgage payments of 14 principal and interests to BPPR that amount to $34,618.91 monthly. 15 13. Debtor’s regular mortgage payment to Banco Santander (another secured creditor) is 16 $5,129.64 monthly. Banco Santander is secured by a first rank mortgage on real property located at Puerto Rico Highway 490 Km. 1.4 Hato Arriba Ward Arecibo, 18 Puerto Rico. 19 14. The Hato Arriba Ward real property secures a first rank mortgage held by Banco 20 Santander on a loan that as of the date of petition has a balance of $673,359.09 21 according to the unobjected proof of claim. 22 15. The combined amount of BPPR’s and Banco Santander’s claims substantially exceeds 23 the total value of all of the Debtor’s real property. 24 16. According to Debtor’s Schedule I, his Current Income of Individual Debtor (dated 25 December 14, 2010), he reported a combined average monthly income of $88,533.66. 26 This income consisted of $84,733.66 in regular income from the operation of his dairy 27 farm and $3,800.00 in income from real property. 28 17, In his Schedule J (Current Expenditures of Individual Debtor), he informed his 13

1 creditors that he had average monthly expenses of $80,215.50. These expenses 2 consisted of $73,410.50 per month in regular expenses from the operation of his dairy 3 farm plus$6,805.00 in other personal expenses (including a monthly home mortgage 4 payment of $3,875.00). He also reported that he earned a monthly net income of 5 $8,318.16 (that is, $88,533.66 in average monthly income minus $80,215.50 in 6 average monthly expenses, which equals $8,318.16). 7 18. Atthe August 15" and 16", 2011 hearings, Debtor and BPPR stipulated that Debtor’s 8 weekly recurring expenses for the operation of his dairy farm were $18,200.00, 9 exclusive of mortgage payments. Thus, Debtor’s average monthly operating expenses 10 (exclusive of debt servicing) are in the amount of $72,400.00 (that is, $18,200 x 4 11 weeks is $72,400.00). 12 19. Debtor is also responsible for the following additional monthly mortgage payments: 13 (a) $650.00 to Doral Financial for house number 5 in Arboleda; (b) $650.00 to 14 Oriental Financial for house number 6 in Arboleda. 15 20. The per diem interest rate on Debtor’s loans to BPPR at the stipulated 6% default rate 16 are as follows: (a) $1,771.34 for loan number 3001; (b) $29.38 for loan number 4001; 17 (c) $46.38 for loan number 5001; and (d) $46.38 for loan number 9032. Altogether, 18 these loans add up to $1,893.48 per diem in interest 19 21. At the hearings held on August 15 and 16, 2011, Debtor testified that he was 20 responsible for the monthly payments of approximately $650.00 to Doral Financial 21 and Oriental Financial respectively, and that he had not made any payments on these 22 two mortgages since filing for bankruptcy. He also noted that he had not paid the 23 mortgage on his primary residence to Banco Santander since filing for bankruptcy. 24 Although he disputed the interest amount owing to Banco Popular, he nonetheless 25 admitted that he had not paid anything to Banco Popular since December 24, 2010 26 (the date of his bankruptcy petition). 27 22. Insummary, Debtor’s average monthly expenses are as follows: 28 14

7 23. On Schedule D, Creditor’s Holding Secured Claims, Debtor reported the following 8 secured claims: (a) $649,171.32 owing to Banco Popular on a loan to Productos 9 Edgar, Inc.; (b) $10,628,056.58 owing to Banco Popular on a loan of his dairy 10 operations; © $666,674.43 owing to Banco Santander on his home in Isabela (which 11 he valued at $750,000.00); (d) $89,389.21 owing to Doral Financial on house number 12 5 in Arboleda (valued at $120,000); and (e) $88,636.24 owing to Oriental Financial 13 on loan number 6 at Arboleda (which he valued at $120,000). 14 24. On Schedule E, Creditors Holding Unsecured Priority Claims, Debtor acknowledged 15 owing the following priority tax claims:

po foray | 893,805.43 | 22 25. Hin his Statement of Financial Affairs, Debtor reported gross income from his dairy 23 operations as follows for the past 3 years prior to his bankruptcy petition. 24

26 2 26. Debtor’s gross income has declined almost by about a third during the past 3 years. 28 15

1 His gross income for the 2010 fiscal year translates into approximately $88,543.55 per 2 month. With an average gross monthly income of $88,543.55, Debtor is unable to 3 comply with his average monthly expenses of $112,174.64. He is approximately 4 $24,000 short on cash each month vis a vis his reported monthly expenses. 5 27. During the one year period immediately preceding the filing of his Chapter 11 6 petition, Debtor had been sued in mortgage foreclosure and collection of money by 7 Banco Santander, Oriental Financial and Doral Financial 8 28. Debtor had not remitted any payments to Banco Santander since filing for Chapter 11 9 relief. 10 29. Debtor’s Monthly Report of Operations for June 2011 reflects total receipts of 1l $107,747.45, minus total disbursements of $98,641.40 for a total net cash flow of 12 $9,106.05. Docket No. 166. 13 30. In Debtor’s June 2011 MOR, p. 21, under the heading “Notes, Leases and Adequate 14 Protection Payments”, he reported the following: 'S Il Secured Creditor Scheduled Total past Amount | Total unpaid Number 16 Monthly due rom paid post-petition of ymen past months uring payments

sare isan eam] - | samen | 7 19 | pan sama [300 | | 20 | DowlFinancin [ean | □□□ | _asmar □□ »1 Porenar Geoup [esas [taro - [aan | Banco Sender saeasze | Tasso | | 2670824] Seoiabax | s9a%] — azoaf 24 31. Therefore, to that date, Debtor was at least 7 payments past due, his scheduled 25 monthly payment due to Banco Popular is $34,618.91, and his total unpaid post 26 petition debt due to Banco Popular was around $242,332.37 ($34,618.91 x 7 months 27 past due). Also as to that date, the grand total of all unpaid post petition payments 28 16

1 was $294,373.03. This amount of unpaid post-petition debt exceeds the amount 2 available in Debtor’s marginal account at BPPR (which according to the Debtor was 3 approximately $277,192.82 as to August 12, 2011). Exhibit M presented by debtor at 4 the August 16™ hearing. Thus, the Debtor was about $17,180.21 short of meeting his 5 on going expenses at the time the Motion to Dismiss was filed. Debtor has not 6 serviced any amounts to BPPR from June 2011 to the present either. 7 32. Debtor requested loans from BPPR to purchase additional cows for his herd on 8 August 15, 2007, August 8, 2008 and September 25, 2009. Despite the BPPR’s 9 concession of these loans, Debtor has been unable to comply with his repayment 10 obligations to BPPR. 11 33. The historical record shows that during the 2010 fiscal year debtor generated gross 12 sales of approximately $88,543.55 per month. On Schedule J, Mr. Torres stated that 13 he received a monthly net income of $8,318.16 (without servicing his secured debts). 14 34. Neither the Debtor nor his external CPA, Mr. Monge, explained precisely how Debtor 15 will cover his $39,774.64 in monthly debt servicing with a monthly net income of 16 $8,318.16 17 35. Debtor was granted time from June 13, 2011 to date to obtain alternate sources of 18 financing for his daring operations. Nevertheless, he was unable to secure any such 19 third party or outside financing. 20 36. Exhibit 12 submitted by Banco Popular and the debtor with their joint Pre Trial 21 Report dated June 1, 2011 at docket entry number 126 (filed in connection with the 22 related contested matter arising from debtor’s earlier motion from Use of Cash 23 Collateral) shows that Banco Popular declared debtor’s default on December 13, 24 2010, thereby activating the fixed default rate of 6% on his outstanding loans with the 25 bank. 26 37. Debtor has not requested that this case be converted into a Chapter 7. 27 38. The lift of the automatic stay has been lifted in regard to real property securing Banco 28 Santander’s and Doral Bank’s credits. See Docket Nos. 209, 210, 212, 221, 223, 246. 17

1 2 Applicable Law & Analysis 3 Section 1112(b)(1) of the Bankruptcy Code provides as follows: 4 Except as provided in paragraph (2) and subsection (c), on request of a party in interest, and after notice and a hearing, the court shall convert a case under this 5 chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines 6 that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate. 11 U.S.C. § 1112(b)(1) (Emphasis ours.) ’ The Court’s discretion to dismiss or convert a Chapter 11 case is limited if cause is established. See Gilroy v. Ameriquest Mortg. Co. (inre Gilroy), 2008 Bankr. Lexis 3968, 2008 WL 4531982 (B.A.P. ° 1“ Cir. 2008); and AmeriCERT, Inc. v. Straight Through Processing, Inc. (Inre AmeriCERT, Inc.), ° 360 B.R. 398, 401 (Bankr. D. N.H. 2007) (“Prior to its amendment, the statute provided that a court ‘may’ dismiss the case upon finding cause, but amended section 1112(b) provides that a court ‘shall’ 2 dismiss if cause is found, absent unusual circumstances.”). The initial burden is on the movant to 8 argue and present evidence by a preponderance of the evidence standard to prove its position that 4 there is cause for either conversion or dismissal of the Chapter 11 case, whichever is in the best interests of creditors and the estate. See Alan N. Resnick & Henry J. Sommer, 7 Collier on Bankruptcy 91112.04[4] (16" Ed. 2011). “Thus, until the movant carries this burden, the statutory direction that the court ‘shall convert the case to a case under chapter 7 or dismiss the case’ is not operative.” Id. “Cause” is demonstrated through the preponderance of evidence standard. See Keven, A. McKenna, P.C. v. Official Comm. of Unsecured Creditors (In re Keven, A. McKenna, ° P.C.), 2011 U.S. Dist. LEXIS 57985 (D.R.I. 2011); Inre El Legado, 2010 Bankr. LEXIS 1676, 2010 WL 1924439 (Bankr. D.P.R. 2010); Inre Woodbrook Assoc’s., 19 F.3d 312 (7" Cir. 1994); Colonial 22 Daytona Ltd. Partnership v. American Sav. of Fla., 152 B.R. 996, 1001-1002 (M.D. Fla. 1993). 3 Once“cause” is established, the burden shifts to the debtor to demonstrate “unusual circumstances” that establish that dismissal or conversion to Chapter 7 is not in the best interests of the creditors and the estate. See Alan N. Resnick & Henry J. Sommer, 7 Collier on Bankruptcy § 1112.05[1] (16" Ed. 2011) and In re Dr. R. Samanta Roy Institute of Science Technology Inc., 2011 US App. Lexis 12148 at *8 (3 Cir. 2011) (once cause is found, the burden shifts to the opposing party to show why 28 18

1 |idismissal or conversion would not be in the best interests of the estate and the creditors). The 2 |bankruptcy court retains broad discretion in determining whether unusual circumstances exist and 3 |lwhether conversion or dismissal is in the best interest of creditors and the estate. Gilroy v. 4 ||Ameriquest Mortg. Co. (in re Gilroy), 2008 Bankr. Lexis 3968 (1* Cir. B.A.P. 2008). A 5 determination of unusual circumstances is fact-intensive and contemplates facts that are not common 6 Chapter 11 cases. See Alan N. Resnick & Henry J. Sommer, 7 Collier on Bankruptcy 41112.05[1] 7 |(16" Ed. 2011). If the Chapter 11 case is devoid of “unusual circumstances”, then the bankruptcy 8 llcourt must apply the Section 1112(b)(2) analysis to determine whether the Chapter 11 case should 9 Ibe dismissed or converted to a Chapter 7. The objecting party must establish all of the factual 10 |lelements stated in subparagraphs (A) and (B) of section 1112(b)(2). Id, In sum, a bankruptcy court 11 not convert or dismiss a case if: “(1) there is a reasonable likelihood that a plan will be 12 confirmed within a reasonable time; (2) the ‘cause’ for dismissal or conversion is something other 13 a continuing loss or diminution of the estate coupled with aJanuary 20, 2012 lack ofreasonable 14 likelihood of rehabilitation; and (3) there is a reasonable justification or excuse for a debtor’s act or 15 jjomission and the act or omission will be cured within a reasonable time.” In re Orbit Petroleum, 16 395 B.R. 145, 148 (Bankr. D. N.M. 2008) aff?d, 421 B.R. 602 (B.A.P. 10" Cir. 2009). 17 Although Section 1112(b)(4) of the Bankruptcy Code fails to define what “cause” means, 18 does provide a list of circumstances that constitute “cause” for conversion or dismissal. The list 19 |lof causes is non-exhaustive and thus a case may be converted or dismissed for other causes. See 20 |AmeriCERT, Inc. v. Straight Through Processing, Inc. (In re AmeriCERT, Inc.), 360 B.R. at 401, 21 Tuli v. US Trustee, 124 Fed. Appx. 830, 831 (5™ Cir. 2005). See also 11 U.S.C. § 1112(b)(4) 22 |i(using the term “includes” before listing various reasons for dismissing a case). A bankruptcy court 23 |imay also “dismiss a Chapter 11 petition for any reason cognizable to the equity power and 24 ||conscience of the court as constituting an abuse of the bankruptcy reorganization process.” Inre 347 25 ||Linden LLC, 2011 U.S. Dist. LEXIS 78843 at *10, Bankr. L. Rep. (CCH) P82, 042 (E.D.N.Y. July 26 20, 2011), citing In re HBA E., Inc., 87 B.R. 248, 258 (Bankr. E.D.N.Y. 1988). 27 Thus, for purposes of 11 U.S.C. § 1112, under the particular facts of this case, the term 28 |“cause” includes, but is not limited to, the following: 19

1 (A) substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation; ; (F) unexcused failure to satisfy timely any filing or reporting requirement 3 established by this title or by any rule applicable to a case under this chapter f11 U.S.C. §§ 1101 et seq.] After the moving party establishes cause to dismiss or convert the case to Chapter 7 and that ° there are no “unusual circumstances”, the court must choose between dismissal or conversion, ° “whichever is in the best interest of creditors and the estate.” 11 U.S.C. § 1112(b)(1). Generally, ’ the standard for choosing between conversion or dismissal based on “the best interest of creditors and the estate” implies the application of a balancing test by the bankruptcy court. See In re De ° Jounghe, 334 B.R. at 770, and In re Staff Inv. Co., 146 B.R. 256, 260 (Bankr. E.D. Cal. 1992). The legislative history shows that Congress intended to invest the bankruptcy court with “wide discretion ... to make an appropriate disposition of the case” and “to consider other factors as they arise, and use its equitable powers to reach an appropriate result in individual cases.” In re De Jounghe, 334 B.R. at 770, citing H.R. Rep. No. 595, 95" Cong., 2d Sess. 406, reprinted in 1978 U.S.C.C.A.N. 5963, 6361-62. Notwithstanding, Section 1112© prohibits conversion to a Chapter 7 “if the debtor is a farmer or a corporation that is that is not a moneyed business, business, or commercial 8 corporation, unless the debtor requests such conversion”. Each applicable cause will be discussed separately. {A] Substantial or continuing loss to or diminution of the estate and the absence of a reasonable 19 likelihood of rehabilitation 20 This cause entails a two-fold inquiry: (1) whether after the commencement of the case, the 21 |Idebtor has suffered or continued to experience a negative cash flow, or, alternatively, declining asset 22 |ivalue; and (2) whether there is any reasonable likelihood that the debtor, or some other party, will 23 able to stem the debtor’s losses and place the debtor’s business enterprise back on a solid 24 |financial footing within a reasonable amount of time. Both tests must be satisfied in order for cause 25 exist under cause. See Alan N. Resnick & Henry J. Sommer, 7 Collier on Bankruptcy { 26 1112.04[6][a] (16" Ed. 2011). Also see In re Citi-Toledo Partners, 170 B.R. 602, 606 (Bankr. N.D. 27 1994) (‘Section 1112(b)(1) contemplates a ‘two-fold’ inquiry into whether there has been a 28 |I‘continuing diminution of the estate and absence of a reasonable likelihood of rehabilitation.’”) 20

1 |\(citations omitted). To satisfy the first prong, “[a]l] that need be found is that the estate is suffering 2 |lsome diminution in value”. In re Kanterman, 88 B.R. 26, 29 (S.D.N.Y. 1988)*, also cited in In re 3 |iCiti-Toledo Partners, 170 B.R. at 606, and Taub v. Taub (In re Taub), 427 B.R. 208, 230 (Bkrpt. 4 |E.D.N.Y. 2010), aff'd at 2010 U.S. Dist. LEXIS 104805, E.D.N.Y. August 30, 2010). To consider 5 diminution of the estate, the court must evaluate the current condition of the estate and look 6 |beyond financial statements. Canpartners Realty Holding Co. IV, L.L.C. v. Vallambrosa Holdings 7 419 B.R. 81, 88 (Bankr. S.D. Ga. 2009). Ifthe court finds that there is in fact such diminution, 8 must then consider the second prong: whether or not “the Debtor or another party [will] be able 9 “stop the bleeding’ and return the debtor to solid financial footing within a reasonable amount of 10 |[time.” Alan N. Resnick & Henry J. Sommer, 7 Collier on Bankruptcy § 1112.04[6][a] (16™ Ed. 11 2011). For purposes of this cause, “likelihood of rehabilitation” does not equate “reorganization”. 12 Rehabilitation contemplates the successful maintenance and re-establishment of the debtors’ 13 |business operations and “to put back in good condition; re-establish on a firm, sound basis.” In re 14 |Vallambrosa Companies, 274 B.R. 721, 725 (Bankr. N.D. Oh. 2002) See also Loop Corp. v. United 15 |[States Trustee, 290 B.R. 108, 113 (D. Minn. 2003) aff'd 379 F.3d 511 (8 Cir. 2004), cert. denied 16 543 U.S. 1055, 125 S. Ct. 915, 160 L. Ed. 2d 778 (2005). To determine whether the debtor’s 17 |business prospects are sufficient to justify a finding of a reasonable likelihood of rehabilitation, the 18 |lcourt must analyze if the causes for debtor’s continuing losses can be corrected, and if the debtor 19 llor some other party in interest is capable or willing to perform the necessary remediation. This is 20 |not a “technical [test] of whether the debtor can confirm a plan, but rather, whether the debtor’s 21 business prospects justify continuance of the reorganization effort.” In re Original IFPC S’holders, 22 |ilnc., 317 B.R. 738, 742 (Bankr. N.D. Ill. 2004). Nevertheless, rehabilitation in a Chapter 11 begins 23 a confirmable plan. It then requires, at minimum, the prospect of re-establishment of a 24 |lbusiness. See Loop Corp., 379 F.3d at 518; Loop Corp., 290 B.R. at 113-14. “Ifthe debtor or some 25 en 26 * The case law prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub. L. No. 109-8, 119 Stat. 23 (2005), is applicable to the analysis of Section 1112 of the 27 current Bankruptcy Code, especially since the new language in Section 1112(b)(4)(A) is almost identical to the one 38 pre-BAPCPA. See In re Gateway Solutions, Inc., 374 B.R. 556, 562 (Bankr. M.D. Pa. 2007).

1 flother party in interest is unable or unwilling to put together a convincing business plan within a 2 llreasonable amount of time, and can offer neither a valid justification for the failure to do so nor a 3 reasonable prospect of being able to accomplish the task in the near future, there is often little reason 4 |Ito proceed with the reorganization.” Id. See also In re Winshall Settlor’s Trust, 758 F.2d 1136, 5 1137 (6™ Cir. 1985) (“The purpose of Chapter 11 reorganization is to assist financially distressed 6 ||business enterprises by providing them with breathing space in which to return to a viable state ... 7 |\‘[Lf there is not a potentially viable business in place worthy of protection and rehabilitation, the 8 ||Chapter 11 effort has lost its raison d’etre ...””) (citation omitted); A. [lum Hansen, Inc. v, Tiana 9 Queen Motel, Inc. (In re Tiana Queen Motel, Inc.), 749 F.2d 146, 151 (2° Cir. 1984) (dismissal 10 |lwarranted where no prospect of rehabilitation because the debtor lacked the “wherewithal necessary 11 |jto market their properties expeditiously, [an ability] to devise a reorganization plan grounded in 12 |reality” and where secured creditors suffered as a result), cert. denied, 471 U.S. 1138, 105 S. Ct. 13 2681, 86 L. Ed. 2d 699 (1985); and Johnston v. Jem Dev. Co. (In re Johnston), 149 B.R. 158, 162 14 |(B.A.P. 9" Cir. 1992). “A plan for rehabilitation under Chapter 11 must be based on more than 15 speculative data.” In re Schriock Constr. Inc., 167 B.R. 569, 576 (Bankr. D.N.D. 1994). “If it is 16 |japparent that the debtor has no profitable core around which to structure a plan of reorganization, 17 |if the debtor is faced with continuing losses, and if the debtor’s assets are declining in value, the best 18 jlinterest of creditors may require the court to dismiss or order liquidation of the debtor’s estate under 19 ||Chapter 7.” In re Macon Prestressed Concrete Co., 61 B.R. 432, 436 (Bankr. M.D. Ga. 1986). Also 20 In re Kors, Inc., 13 B.R. 676, 681 (Bankr. D. Vt. 1981). “However honest in its efforts the 21 |idebtor may be, and however sincere its motives, the District Court is not bound to clog its docket 22 |jwith visionary or impracticable schemes for resuscitation.” Tennessee Publishing Co. v. American 23 |(Nat’l Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87 (1936). “[T]here must be ‘a reasonable possibility of 24 successful reorganization within a reasonable time.’” United Sav. Ass’n v. Timbers of Inwood 25 ||Forest Assoc’s., 484 U.S. 365, 376, 108 S.Ct. 626, 632, 98 L.Ed.2d 740 (1988) (citations omitted). 26 Courts usually require the debtor do more than manifest unsubstantiated hopes for a successful 27 reorganization.” In re Canal Place Ltd. Partnership, 921 F.2d 569, 577 (5" Cir.1991); In re Brown, 28 951 F.2d 564, 572 (3 Cir. 1991). 22

1 The record of this case and the evidence presented demonstrate that Debtor’s estate has 2 liconsiderably diminished in value, which amply satisfies the first prong. See In re Kanterman, 88 3 |B.R. at 29 (“[al]ll that need be found is that the estate is suffering some diminution in value”). The 4 |main diminution in this case is evident in the considerable reduction of Debtor’s estate value 5 liencumbered by BPPR’s lien. BPPR’s total credit as to December 2010 summed $12,041,132.75 and 6 ||since then the value of the estate that has been reduced to about half: $6,318,000.00. Debtor 7 acknowledged such diminution inasmuch as the appraisals he initially presented to the court for the 8 |lsame properties were for $19,464,000 (alleging that BPPR was oversecured) but then later accepted 9 |BPPR’s appraisals (alleging that BPPR was undersecured). See Exhibit | of Docket No. 13 10 |(Debtor’s initial appraisals), and compare to Docket No. 159 (withdrawing his motion for cash 11 jicollateral in light of BPPR’s appraisal). Evidently, there used to be equity in those properties, but 12 |icurrently there is none. Moreover, the estate has also been reduced as a result of a stipulation with 13 |Debtor for the lift of the automatic stay in regard to Banco Santander’s secured property (Docket 14 |INo. 221 -Minutes of Hearing on motion to lift stay with Banco Santander) and an Order granting 15 Doral Bank’s unopposed Motion for Relief of Stay (Docket Nos. 243 & 246). In addition, 16 |jaccumulating administrative expenses are eroding the position of the estate’s creditors and further 17 |diminishing the value of the estate. See Canpartners Realty Holding Co. IV, L.L.C. v. Vallambrosa 18 |Holdings Co., 419 B.R. at 89. The trend of diminution is consistent with Debtor’s pre-petition 19 jreality: Debtor’s gross income has steadily declined by almost a third since 2008. In fact, the early 20 |istages of this case painted a bleak picture of rehabilitation considering that Debtor had not been able 21 meet his quota since about 4 or 5 prior to his filing for bankruptcy, according to his testimony 22 |Iduring the June 9, 2011 hearing. Debtor’s cash flow has also been inconsistent since the filing of 23 petition, as evidenced in Debtor’s MORs. To that extent, the MOR for the month of November 24 12011, the very last one filed (Docket No. 250), demonstrates a considerable reduction in his cash 25 when compared to previous MORs. See In re Consol, Pioneer Mortg. Entities, 264 F.3d 803, 26 ||806-807 (9" Cir. 2001) (“[A] negative cash flow situation alone is sufficient to establish continuing 27 |jloss to or diminution of the estate.”’) (internal quotation marks omitted). Even if the court considers 28 |jthe amount accumulated in Debtor’s marginal account at BPPR, any positive net income or ending 23

1 |[balance is a result of his making no payments to his secured creditors, including BPPR. 2 The also court takes into account that throughout the extensive litigation of this case, the very 3 time that Debtor offered to make any payments in principal and interests to BPPR was as recent 4 llas November 21 , 2011 (Docket No. 229). In addition, Debtor’s failure in obtaining alternate sources > llof funding and/or financing for his proposed operations for rehabilitation, particularly when he 6 presented these efforts into evidence but never the ultimate result, militate against him. The actual 7 historical record developed fails to support the optimistic forecast set forth in Debtor’s projections. 8 Irhose projections, when compared with Debtor’s recent, actual and past performance, are simply realistic. ‘0 The court concludes that record in this case together the lengthy litigation history with BPPR " supports the notion that a viable reorganization is unlikely in view of Debtor’s extensive liabilities and limited reduced assets. Debtor has not demonstrated a reason to believe that he had a potentially 8 meritorious basis on which to oppose BPPR’s Motion to Dismiss. See In re Bartle, 560 F.3d 724, 4 730 (7" Cir. 2009). (B) Unexcused failure to satisfy timely any filing or reporting requirement established by this 16 title or by any rule applicable to a case under this chapter [11 U.S.C. §$ 1101 et seq.]. 17 8 Pursuant to Section 1112(b)(4)(f) of the Bankruptcy Code, unexcused failure to report or to 19 file required information constitutes cause for conversion or dismissal. Sections 704(8), 1106(a)(1), 50 1107(a) of the Bankruptcy Court, Federal Rule of Bankruptcy Procedure 2015 and LBR 2015-2 1 require debtors in possession, such as Debtor, to file monthly operating reports within the twentieth 3 (20") day of the subsequent month. “The non-filing of required reports must be ‘unexcused’, 33 therefore indicating that the court has discretion to determine whether the debtor’s failure rises to 54 the level of cause.” In re Landmark Atl. Hess Farm, LLC, 448 B.R. 707, 716 (Bankr. D. Md. 2011). 25 The docket of this case shows that Debtor repeatedly filed tardy monthly operating reports. 26 |See Docket Nos. 61 (MORs for December 2010 and January 2011 filed on March 18, 2011), 151 27 |(MOR’s for March, April and May 2011 filed on July 5, 2011), 207 (MOR for July 2011 filed on 3g |September 27, 2011), 225 (MOR for August 2011 filed on November 15, 2011), 243 (MOR for 24

1 September 2011 filed on December 2, 2011), and 244 (MOR for October 2011 filed on December 2 2, 2011). That is, during the whole course of 2011, of the 12 months that encompass the year, 3 ||Debtor only timely filed two operating reports, to wit, the ones for January and November 2011 4 (Docket Nos. 95 & 250). 5 Generally, filing late MORs would not necessarily be in and of itself sufficient grounds for © Iidismissal. However, after carefully considering the particular circumstances of this case, dismissal 7 warranted, especially in light of the fact that during the last hearing for cash collateral held on 8 |iNovember 29, 2011 at Debtor’s request, the MORs for the previous months of September and ? October, which were essential to consider Debtor’s request, had not been filed. See Docket No. 271, 10 p. 15, lines 20-23. And although Debtor informed the court that those MORs would be filed that 11 |lsame afternoon (Docket No. 271, p. 15, line 25, and p. 16, line 1), the fact is that they were not filed 12 until December 2, 2011 (Docket Nos. 243 & 244) without any explanation for its tardiness 13 whatsoever. The same situation happened during the hearings to consider Debtor’s request for cash 14 |eollateral held on March 1 1, 2011, June 6, 2011 and August 31, 2011. Compare with Docket Nos. 15 61, 151 & 207. Debtor’s tardiness has hindered the proper course of this case in spite of having been 16 forewarned since the status conference held on F ebruary 22, 2011. See Docket Nos. 44 and 271. 17 INo excuse from Debtor has been offered for his repeated delays. Also see Docket No. 123 18 (Trustee’s reasoning at §] 3 regarding Debtor’s tardiness and lack of MORs filings). “Refusal or inability to provide financial disclosure sounds the death knell of a Chapter 11 case. The failure to file monthly operating statements ... ‘whether based on inability to do so or 1 otherwise, undermines the Chapter 11 process and constitutes cause for dismissal or conversion of the Chapter 11 proceedings.’” Inre Tornheim, 181 B.R. 161, 164 (Bankr.S.D.N.Y. 1995) (citations omitted). Similarly, in In re Crosby, 93 B.R. 798 (Bankr. S.D. Ga. 1988), the court recognized, but did not hold, that there is authority for dismissing a case for cause where a debtor did not file 25 26 —_—_—$$ 27 * During that hearing, Debtor denied having used cash collateral for non-agreed purposes. The court found that BPPR, the court itself and other creditors were in total dark as to his operations because at that time he had not 28 |) filed any MORs since the filing of the bankruptcy petition. 25

1 monthly operating reports until the morning of a hearing on the failure to file the reports. Likewise, 2 jin In re Whitehurst, 198 B.R. 981 (Bankr. N.D. Ala. 1996), the court found that failing to file 3 |(Chapter 11 operating reports is sufficient Section 1112(b) cause for dismissing or converting a 4 Chapter 11 case. In Babakitis v. Robino (In re Robino), 243 B.R. 472 (Bankr. N.D. Al. 1999), the 5 |court dismissed the case inter alia due to debtor’s failure to file his monthly operating reports and 6 ||reasoned as follows: “the debtor left [the] Court and the parties without the information the reports 7 |jwere designed to produce. The harm is both legal and practical. Neither can be ignored.” Id. at 8 486. The same reasoning is applicable to this case, especially at the November 29, 2011 hearing. 9 Docket No. 271. Since Debtor has offered no legitimate excuse for his repeated tardiness, this 10 licourt deems such pattern unexcused under 11 U.S.C. § 1112(b)(4)(f). No “unusual circumstances” 11 |lhave been alleged regarding this cause, much less proven. Conclusion 8 In view of the foregoing, the court finds that there is sufficient cause to dismiss this case 4 pursuant to 11 U.S.C. §§ 1112(b)(4)(a) & (f) and there being no unusual circumstances nor 8 possibility of conversion to a Chapter 7 pursuant to 11 U.S.C. § 1112(c), the case is hereby dismissed. 17 18 Judgment shall be entered accordingly. 19 SO ORDERED. 20 In San Juan, Puerto Rico, this 23" day of January, 2012. 21 . 22 i if 23

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