In re: Rafael A. Maldonado Rosado; Jomayra Olmo Rodriguez v. Victor Manuel Cruz Colon; Lydia Castro Soberal & The Conjugal Partnership Comprised by Them; Luis Morell Morell; Et. Als

• Court: United States Bankruptcy Court, D. Puerto Rico
• Decided: October 13, 2009
• Docket: 08-00153
• Status: Unknown

Opinion

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF PUERTO RICO 2 3 IN RE: : CASE NO. 01-06989 4 : RAFAEL A. MALDONADO ROSADO,; _ : 5 JOMAYRA OLMO RODRIGUEZ : CHAPTER 13 6 Debtors RAFAEL A. MALDONADO ROSADO; — : g JOMAYRA OLMO RODRIGUEZ : ADVERSARY NO. 08-00153 9 Plaintiffs 10 Vs: VICTOR MANUEL CRUZ COLON; : Il [LYDIA CASTRO SOBERAL & THE CONJUGAL PARTNERSHIP COMPRISED: 12 |BY THEM; LUIS MORELL MORELL; □ : ET. ALS : 13 : Defendants : 14 : fT 16 OPINION AND ORDER 17 This adversary proceeding is before the court upon a second motion to dismiss filed on 18 February 2, 2009 by Victor Cruz Colon, Lydia Castro Soberal, the conjugal partnership comprised 19 between them and Luis Morrel Morrel (hereinafter referred to as “Defendants” or “Defendants- 20 Creditors”) (Docket No. 32). Defendants argue that their claim is exempted from discharge since 21 their debt is of the kind specified pursuant to 11 U.S.C. §523(a)(9) of the Bankruptcy Code, and as 22 such, Rafael A. Maldonado Rosado and Omayra Olmo Rodriguez’s (hereinafter referred to as 23 “Plaintiffs” or “Plaintiffs-Debtors”) complaint is devoid of a claim for which relief may be granted. 24 Plaintiffs filed on February 26, 2009 an opposition to Defendants’ second motion to dismiss (Docket 25 No. 33), in essence arguing that there was never a determination of non-dischargeability by the 26 Commonwealth of Puerto Rico Court of First Instance-Bayamén Part (“state court”). Plaintiffs 27 request the court to deny the motion to dismiss, order Defendants to answer the complaint and impose 28 sanctions. For the reasons set forth below the second motion to dismiss is denied.

1 Facts and Procedural Background 2 Plaintiffs filed a bankruptcy petition under Chapter 13 of the Bankruptcy Code on June 19, 3 2001. Plaintiffs included in Schedule F- Creditors Holding Unsecured Nonpriority Claims, the 4 Jamount of $15,000.00 owed to Victor Cruz Colén and that such debt resulted from a civil action 5 |(Docket No. 1 in lead case 01-06989'). The address that was listed for Victor Cruz Colén on Schedule 6 ||F was the following: P.O. Box 1292, Hatillo, PR 00659 and he was included in the master address 7 Attorney Luis Morell Morell was also included in the master address list with the following 8 jjaddress: 171 Ave. Mufioz Rivera Oeste #1, Camuy, PR 00627-2335. A copy of the Order and Notice 9 the meeting of creditors was mailed by first class to Victor Cruz Col6én by the Office of the 10 (Chapter 13 Trustee on June 26, 2001 (Docket No. 3 in lead case, pg 2). The 341 creditors meeting 11 scheduled for July 23, 2001 and was subsequently closed on July 24, 2001 (Dockets in lead case 12 3 & 9). The claims register report reveals that Defendants failed to file a proof of claim. 13 ||Plaintiffs’ Chapter 13 plan was confirmed on October 24, 2001 and the corresponding order 14 |confirming the plan was granted on October 26, 2001 (Dockets Nos. 19 & 20 in lead case). The 15 Chapter 13 Trustee filed the “Final Report And Account” on August 25, 2005 (Docket No. 40 in lead 16 and the Debtors were granted a discharge under 11 U.S.C. §1328(a) of the Bankruptcy Code on 17 October 24, 2005 after completing all payments under its Chapter 13 plan (Docket No. 41 in lead 18 Victor Cruz Colén and Luis Morell Morell appear on the certificate of service as having being 19 |served copy of the Debtors’ discharge order on October 26, 2005 via first class mail (Docket No. 43 20 jin lead case). 21 On October 7, 2008, Debtors filed a motion to reopen their Chapter 13 case with intent to file 22 complaint regarding an alleged violation of the discharge injunction and civil contempt committed 23 ||by Defendants (Docket No. 45 in lead case). The court granted Plaintiffs’ request to reopen their 24 Chapter 13 case on October 14, 2005 (Docket No. 47 in lead case). 25 Subsequently, on October 17, 2008 Plaintiffs filed a complaint based on alleged violations of 26 "References to the lead case are to the entries and documents filed in the bankruptcy case, 28 || case number 01-06989(ESL).

| discharge injunction pursuant to 11 U.S.C. §524(a) of the Bankruptcy Code committed by the 2 ||Defendants and praying that they should be held in civil contempt for their reckless disregard of this 3 |jcourt’s discharge order. 4 Plaintiffs include in the complaint all the alleged facts and the corresponding documentary 5 |levidence which constitute violations of the discharge order pursuant to 11 U.S.C. §524(a). Plaintiffs 6 |jallege the following facts occurred pre-petition: (i) “[o]n or about the date of March 5, 1999, Plaintiff 7 A. Maldonado Rosado was involved in a traffic accident with Defendants Victor Manuel Cruz 8 and Lydia Castro Soberal” (Docket No. 1, paragraph 6); (ii) “[o]n or about the date of 9 September 14, 1999 co-defendants Victor Manuel Colén and Lydia Castro Soberal filed complaint 10 damages before the State Superior Court of Bayamén under case DDP 1999-0877 (404)” (Docket 11 1, paragraph 7); (iii) on May 4, 2001 Victor Manuel Cruz Colén and Lydia Castro Soberal 12 |lthrough their respective legal representative, Luis M. Morell Morell and Plaintiffs-Debtors entered 13 |linto a joint stipulation (“Estipulacién Sobre Transaccion y Solicitud de Sentencia,” Docket No. 1, 14 |Exhibit 1) to settle a tort claim by which Debtors were obliged to pay $15,000.00 to Victor Cruz 15 and Lydia Castro Soberal; and (iv) the state court entered the judgment upon stipulation 16 ||\(“Sentencia Por Estipulacién,” Docket No. 1, Exhibit 2) in case number DDP 1999-0877 (404) on 17 |May 23, 2001 and the same was registered and notified on June 7, 2001. The court notes that neither 18 Debtors or the Creditors have provided a copy of the complaint regarding the tort claim and its 19 |janswer of the complaint filed in state court to this court. Plaintiffs filed for Chapter 13 bankruptcy 20 twelve (12) days (June 19, 2001) after the judgment by stipulation had been registered and 21 |Inotified by the state court to the parties. Plaintiffs allege that on July 5, 2001 they filed a motion in 22 court informing the same that they had filed a bankruptcy petition and thus, the automatic stay 23 |lwas in effect and all actions regarding the judgment by stipulation were stayed (Docket No. 1, 24 |\paragraph 16). 25 In a nutshell, Plaintiffs-Debtors allege that the following facts occurred after the entry of the 26 |discharge order: (i) on November 15, 2005, Defendants filed in the state court a motion requesting 27 execution of the judgment by stipulation entered in case number DDP 1999-0877 (404) regarding 28 |jthe tort claim (Docket No. 1, paragraph 22); (ii) on March 20, 2006, attorney Jaime Rodriguez

1 Rodriguez, legal representative for Plaintiffs-Debtors in the state court proceeding sent a letter to Luis 2 Morell Morell requesting Defendants-Creditors to cease collection efforts against Plaintiffs- 3 Debtors in violation of the discharge order entered by this court (“Le estoy solicitando que paralice 4 gestién de embargar los bienes de mi cliente a fin de mitigar los dafios que esta sufriendo mi 5 ||cliente a consequencia de la violacion a la orden de descargo emitido por el Tribunal Federal”) 6 |(Docket No.1, paragraph 23, Exhibit 8); (iii) on April 12, 2006, Plaintiffs-Debtors filed a motion 7 |requesting the stay of execution of the judgment pertaining to the tort claim (Docket No. 1, paragraph 8 |[24); (iv) on May 5, 2006 the state court ordered the execution proceedings regarding the tort claim 9 ||judgment to be stayed. The order was notified to plaintiffs and defendants on May 9, 2006 (Docket 10 ||No. 1, paragraph 25, Exhibit 9); (v) on May 30, 2006, Defendants-Creditors filed a motion in state 11 requesting reconsideration of the order staying the execution of the tort claim judgment based 12 the following allegations; (a) their claim was nondischargeable since it originated from an accident 13 |icaused by the effects of alcohol; (b) the automatic stay is no longer in effect since it ceased to be 14 |leffective upon the date of the discharge order (“Seguin se establece en nuestra Mocién fechadaa 7 de 15 noviembre de 2005, la reclamacién de los demandantes no fue descargada en el caso de quiebra de 16 demandados pues la misma surge de un accidente ocasionado bajo los efectos del licor.” “En vista 17 lo anterior, los demandantes sostienen que la proteccién de ‘paralizacién automatica’ que 18 |\disfrutaron los demandados mientras su caso estuvo pendiente ante la Corte de Quiebras ya no es 19 jjoperativa, pues la misma cesé con la orden de descargo, segtin dispone de la Seccién 362(c)(2) del 20 ||Cédigo de Quiebras.”(Docket No. 1, Exhibit 11, paragraphs 4 & 5); (vi) on June 21, 2006 the state 21 issued an order taking under advisement the Defendants-Creditors’ motion for reconsideration 22 ||(Docket No. 1, paragraph 27, Exhibit 12); (vii) on September 20, 2006, Defendants-Creditors filed 23 |lamotion requesting the court to dispose of the motion for reconsideration and order the continuation 24 the execution proceedings (Docket No.1, paragraph 28, Exhibit 13); (viii) on October 9, 2006, the 25 |jstate court ordered the continuation of the execution of the tort claim judgment (“Enterado. 26 ||Continuese con la ejecucion.”) (Docket No. 1, paragraph 29, Exhibit 14); (ix) on April 11, 2007 27 |\Defendants-Creditors filed a motion requesting the execution of the tort claim judgment be 28 |jeffectuated by a public sale of Plaintiffs-Debtors’ real estate property. Defendants-Creditors also

1 |lrequested $500.00 for attorneys’ fees, plus accumulated interest at a 5% annual rate computed since 2 7, 2001 and 10% of the execution charges (Docket No. 1, paragraph 30, Exhibit 15); (x) on April 3 2007 the state court ordered the execution of judgment to be carried out through a public sale of 4 ||Plaintiffs-Debtors real estate property (Docket No. 1, paragraph 31, Exhibit 16); (xi) on August 7, 5 2008, Defendants-Creditors obtained an act of sale of Plaintiffs-Debtors real estate property by which 6 real property was adjudicated to Defendants-Creditors since they were the only bidders in the 7 sale (Docket No.1, paragraph 32, Exhibit 17); (xii) on August 18, 2008 the deed of judicial sale 8 |lwas executed between the state court marshal, Luis Felipe Padin Valentin and Defendants-Creditors 9 Notary Public Luis M. Morell Morell (Docket No.1, Exhibit 18); and (xiii) Plaintiffs-Debtors 10 informed by a state court marshal that they are to be evicted from their residence on October 21, 11 (Docket No.1, paragraph 34). 12 Given the above-mentioned facts, Plaintiffs-Debtors allege that Defendants-Creditors have 13 |lviolated the discharge injunction by incurring in the following actions: (i) pursuing illegal collection 14 against Plaintiffs-Debtors for a discharged debt and (ii) “...purposely misle[ading] the State 15 ||Court System by way of false allegations to obtain Plaintiffs main residence in payment of a debt for 16 Plaintiffs had obtained discharge.” (Docket No.1, paragraphs 41, 42 & 45). Plaintiffs-Debtors 17 jjallege that the judicial sale of their main residence constitutes an illegal act and is thus null and void. 18 |(Docket No. 1, paragraphs 46 & 47). Plaintiffs-Debtors also request that Defendants be held in civil 19 ||contempt. 20 On October 20, 2008 Plaintiffs-Debtors filed an urgent motion requesting the court to issue 21 |jatemporary restraining order pursuant to Fed. R. Bankr. P. 7065(b) staying the alleged illegal eviction 22 |\proceedings (related to the public sale of their residence) pending the outcome of this adversary 23 |[proceeding. (Docket No. 4). The court granted Plaintiffs-Debtors’ request on October 20, 2008 and 24 |Ischeduled an expedited hearing on this particular matter for October 31, 2008. (Docket No. 5). On 25 ||October 31, 2008, the expedited hearing was held and the court made the following findings: (i) the 26 ||Defendants-Creditors were duly served with a copy of the complaint, summons, temporary restraining 27 jlorder and the urgent motion to stay eviction; (ii) Plaintiffs-Debtors have a prima facie case of a 28 |violation of the discharge injunction; and (iii) Defendants-Creditors have not filed to this date

1 (October 31, 2008) any opposition or reply to the Urgent Motion and have failed to appear at this 2 |jexpedited hearing. (Dockets No. 12 & 24). The court held at the expedited hearing that it would issue 3 preliminary injunction enjoining Defendants-Creditors from further prosecuting any action against 4 ||Plaintiffs-Debtors and scheduled the pre-trial conference for February 27, 2009. (Dockets No. 12 & 5 24). On November 14, 2008, the court pursuant to Fed. R. Bankr. P. 7065(a)(1) granted Plaintiffs- 6 Debtors’ Urgent Motion and enjoined Defendants-Creditors from continuing with the eviction of 7 |Plaintiffs-Debtors from their residence until a final judgment on the merits of this proceeding is 8 jlentered. (Docket No. 20). 9 Subsequently, on November 6, 2008, Defendants-Creditors filed a motion requesting an 10 |jextension of thirty (30) days to answer the complaint (Docket No. 13). Defendants-Creditors on 11 ||November 11, 2008 filed a motion to dismiss alleging that Plaintiffs-Debtors failed to state a claim 12 which relief may be granted. Defendants-Creditors in their motion to dismiss allege the 13 |following: (i) “...Debtor caused personal injuries to the Defendants while operating a motor vehicle 14 jjunder the influence of alcohol” (Motion to Dismiss, paragraph 7); (ii) “[d]espite the language of the 15 |jstipulation in the civil case, Debtor’s liability for operating a motor vehicle while under the influence 16 alcohol was adjudicated by the Vega Baja District Court in Criminal Case No. T99-0866" (Motion 17 Dismiss, paragraph 9, Exhibit I-copy of Arrest Report, Exhibit II- copy of criminal complaint and 18 |judgment); (ii) “[i]t has been held that this Court may look to a criminal conviction despite a civil 19 |judgment to determine the non dischargeability of a claim under 11 USC 523(a)(9). In Re Pahule, 78 20 ||BR 210 (1987), affd, 849 F. 2d 1056 (1988)” (Motion to Dismiss, paragraph 12); and (iv) “[i]t is 21 submitted that creditors who hold claims covered under 11 USC 523(a)(9) are free to assert them 22 ||against the Debtor after bankruptcy, without permission of the Bankruptcy Court. NCLC, Consumer 23 |[Bankruptcy Law & Practice, 8" ed, Sec. 14.4.2" (Motion to Dismiss, paragraph 14). The court on 24 November 13, 2008 granted Defendants-Creditors’ motion requesting a thirty (30) day extension to 25 the answer to the complaint. (Docket No. 18). The court issued an order on November 20, 2008 26 ||stating that Defendants-Creditors attached to the motion to dismiss certain documentation, “tending 27 |\to show that the debt falls within the stated exception” under 11 U.S.C. §523(a)(9) of the Bankruptcy 28 ||\Code and ordered Plaintiffs-Debtors to show cause within thirty (30) days as to why the motion to

1 |idismiss should not be granted (Docket No. 25). 2 Subsequently, Plaintiffs-Debtors filed an “Opposition to Defendant’s Motion To Dismiss” on 3 November 21, 2008 based on the following: (i) “[d]efendants pursued the execution of a judgment 4 llentered by the State Superior Court of Bayam6n under civil case number DDP 1999-0877 (404) in 5 civil proceeding in which, by stipulation of the parties, Plaintiffs did not admit or recognize any 6 |liability nor the facts alleged by Defendants in the complaint. The stipulation makes no reference to 7 or the nature of the complaint filed by Defendants before the Superior Court of Bayamon;” (ii) 8 judgment entered by the Local Court incorporated the terms and conditions of the stipulation 9 made and made no finding of fact that would exempt Defendant’s claim from the discharge 10 jlentered by the Bankruptcy Court;” (iii) “...[t]he judgment entered by the Superior State Court does 11 not distinguish what amount of the judgment is awarded from property loss and what amount is 12 awarded for bodily injury;” (iv) “[t]he doctrine of res judicata applies in the instant case as it had 13 determined that in order to sustain an action to determine the dischargeability of debt that relates 14 |Ito operation of motor vehicle while intoxicated, the burden is placed upon the party requesting 15 |\determination of non-dischargeability (here Defendants) to establish by a preponderance of the 16 jlevidence the following: (1) a debt arising as the result of injury to the person, as opposed to property; 17 |\(2) the debtor was operating a motor vehicle while intoxicated; and (3) causation, i.e., the first 18 llelement case into existence as the proximate result of the second element. In re Crump, 321 B.R. 879 19 ||(2004);” and (v) “[t]he documents submitted by Defendants in their motion to dismiss (Police Report 20 Judgment in criminal case number T-99-866) refer to separate criminal proceedings which were 21 alluded or referred to in the stipulation filed and in the judgment entered by the State Superior 22 of Bayamoén.” (Docket No. 26, paragraphs 6,8,9,10 &11). On November 24, 2008 the court 23 an order by which it considered Plaintiffs-Debtors opposition to Defendants-Creditors motion 24 |ito dismiss as their response to its previous order (Docket No. 25) to show cause as to why the motion 25 dismiss should not be granted and ordered Defendants-Creditors to reply to the same within twenty 26 |\(20) days (Docket No. 28). The court on January 27, 2009 denied the motion to dismiss upon 27 |\Defendants-Creditors failure to comply with this court’s order (Docket No. 30). 28 On February 9, 2009, Defendants-Creditors filed a motion for leave to file reply to Plaintiffs-

1 Debtors’ opposition to the motion to dismiss (Docket No. 32). In said motion, Defendants-Creditors 2 that there are no material facts in controversy and that the relevant legal issue in this adversary 3 |lproceeding was whether Defendants-Creditors’ claim is excepted from discharge pursuant to 11 4 WU.S.C. §523(a)(9) of the Bankruptcy Code (Docket No. 32). To support its position, Defendants- 5 |\Creditors present the following arguments: (i) “...[p]laintiffs’ reliance on the language included in the 6 {Stipulation filed in Civil Case No DDP 99-0877 is unfounded since his liability was previously 7 \jadjudicated by the Vega Baja District Court in Criminal Case No T99-0866, and both cases refer to 8 same accident;” (ii) “[p]laintiffs’ arguments for non liability based on the language of the 9 Stipulation in Civil Case DDP 99-0877 are not sustainable under 11 USC 523(a)(9);” (iii) 10 ||““[p]laintiffs’ second argument regarding the alleged need to file a complaint to determine the non 11 ||dischargeability of the claim is also unfounded under applicable law;” and (v) “...creditors who hold 12 covered under 11 USC 523(a)(9) are free to assert them against Debtor after bankruptcy, 13 |}without permission of the Bankruptcy court.” (Docket No. 32, paragraphs 18, 19,20 & 21). Plaintiffs- 14 ||Debtors filed an opposition to Defendants-Creditors second motion to dismiss on February 26, 2009 15 (Docket No. 33). In addition to the arguments presented by the Plaintiffs-Debtors in their opposition 16 the first motion to dismiss, the Plaintiffs-Debtors advanced the following arguments: (i) “[n]o 17 |\determination of nondischargeability of claim was made by the bankruptcy court nor any adversary 18 |[proceeding was filed;”(ii) “[d]efendants base their request for dismissal in the misleading allegation 19 |Ithat the claim for $15,000 was due to death or personal injury caused by the operation of a motor 20 |\vehicle while intoxicated. However there is nothing in the record to indicate that this debt was of such 21 |nature;” (ii) “[t]he State Superior Court of Bayamoén, in entering its judgment approving the 22 |\stipulation made no finding of any liability regarding death or personal injury due to the operation of 23 |ja vehicle while intoxicated nor was it mentioned or referred to in the stipulation voluntarily entered 24 |jinto and filed before the State Court;” and (iv) “Defendants attempt to justify the illegal collection 25 |jofa discharged debt by wrongly relating said criminal proceeding to the judgment entered by the state 26 |jcourt in a civil proceeding with a judgment that does not relate or make reference to issues in the 27 |\criminal proceeding.” (Docket No. 33. Pgs. 3-4). 28 On February 27, 2009, a status conference was held in which the court granted Defendants-

1 ||Creditors thirty (30) days to brief the issue of impact of 11 U.S.C. §523(a)(9) on property jointly 2 llowned, given that in this particular case, Section 523(a)(9) applies only to one of the Plaintiffs. 3 ||Plaintiffs were granted sixty (60) days to reply. (Docket No. 34). Defendants-Creditors filed a motion 4 compliance with the aforementioned order on April 2, 2009 (Docket No. 36). Plaintiffs-Debtors 5 |jfiled their reply brief in compliance with said order on June 9, 2009 (Docket No. 37). 6 Applicable Law and Analysis 7 |Standard for Granting a Motion to Dismiss 8 Motions to dismiss for failure to state a claim upon which relief may be granted are governed 9 Federal Rule of Civil Procedure 12(b)(6), which provides that a defense of “failure to state a claim 10 jjupon which relief can be granted” to a claim for relief may be presented by motion before the filing 11 a responsive pleading. A motion to dismiss a counterclaim pursuant to Fed. R. Civ. P. 12(b)(6) is 12 javailable to test a claim for relief in any pleading, including a defendant’s counterclaim. See 5B 13 | Wright & Miller, Federal Practice and Procedure: Civil 3d_ § 1356 at 368-369. 14 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted _ 15 true, to “state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 16 173 L. Ed. 2d. 868 (2009) citing Bell Atlantic v. Twombly, 127 S. Ct. at 1974. Thus, a 17 “complaint must plead facts ‘that raise a right to relief above the speculative level’” Dixon v. 18 Shamrock Fin. Corp., 522 F. 3d 76, 79 (1* Cir, 2008); Cook v. Gates, 528 F. 3d 42, 48 Cir. 2008); 19 v. Evercore Restructuring L.L.C., 544 F. 3d 320, 324 (1* Cir. 2008); Gagliardi v. Sullivan, 513 20 IF. 3d 301, 305 (1* Cir. 2008); Perez Acevedo v. Rivero-Cubano at 29; Trans-Spec Truck Serv. v. 21 Caterpillar Inc., 524 F. 3d 315, 320 (1* Cir. 2008); Citibank Global Markets, Inc. v. Rodriguez 22 |\Santana, 573 F.3d 17 (1* Cir. 2009). “Because a dismissal terminates an action at the earliest stages 23 the litigation, without a developed factual basis for decision, the court must carefully balance the 24 of simplified civil pleading against the need for something more than conclusory allegations. 25 ||Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F. 2d 962, 971 (1* Cir. 1993). 26 ||The court will not accept unsupported conclusions or interpretations of the law. Id. 27 |Determination of Exception to Discharge under 11 U.S.C. §523(a)(9) 28 Section 1328(a) of the Bankruptcy Code specifically provides for certain types of debts to be

1 jjexempted from discharge. However, “exceptions to discharge are narrowly construed... and the 2 |\claimant must show that its claim comes squarely within an exception enumerated in Bankruptcy 3 §523(a)” McCrory v. Spigel (In re Spigel), 260 F. 3d 27, 32 (1* Cir. 2001) quoting Century 21 4 |Balfour Real Estate v. Menna, 16 F. 3d 7, 9 (1* Cir. 1994). Section 523(a)(9) specifically excepts 5 discharge an individual’s debt “for death or personal injury caused by the debtor’s operation of 6 jlamotor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated 7 |from using alcohol, a drug, or another substance.’ 11 U.S.C. §523(a)(9). 8 Fed. R. Bankr. P. 4007(b) specifically establishes that “a complaint other than under §523(c) 9 |may be filed at any time” and thus, a case may be reopened to determine the dischargeability or 10 |nondischargeability of a debt. Fed. R. Bankr. P. 4007(b). See Alan N. Resnick & Henry J. Sommer, 11 9 Collier on Bankruptcy §4007.03 (15" ed. 2009); Alan N. Resnick & Henry J. Sommer, 10 Collier 12 jon Bankruptcy 7001.07 (15" ed. 2009). Bankruptcy courts have exclusive jurisdiction to determine 13 dischargeability of debts that fall within Section 523(a)(2), 523(a)(4) and 523(a)(6). See Alan N. 14 [Resnick & Henry J. Sommer, 10 Collier on Bankruptcy §7001.07 (15" ed. 2009). Thus, a 15 determination of dischargeability or nondischargeability for those debts other than those under 16 |Section 523(c) is not limited to the bankruptcy court but may be made by the court having jurisdiction 17 jjover the underlying claim. See In re Jones, 348 B.R. 715, 718 (Bankr. E.D. Va. 2006). Furthermore, 18 |state courts have concurrent jurisdiction with the bankruptcy court to determine the issue of 19 |Inondischargeability pursuant to 11 U.S.C. §523(a)(9). See Inre Smith, 83 B.R. 433, 436 (Bankr. E.D. 20 ||Mich. 1988); In re Anderson, 74 B.R. 463, 464 (Bankr. E.D. Wis. 1987). If the claimant chooses to 21 |present before the bankruptcy court an issue regarding the determination of nondischargeability of 22 |ja particular debt, it must do so by filing a complaint in an adversary proceeding. See Fed. R. Bankr. 4007(a), 4007(e) and 7001(6); Alan N. Resnick & Henry J. Sommer, 10 Collier on Bankruptcy 24 1197001.07 (15" ed. 2009).

25 26 *BAPCPA (Pub. L. No. 109-8, §1209), effective for bankruptcy cases commenced on or 27 || after October 17, 2005, added the operation of an aircraft or vessel while intoxicated to the acts which may except a debt from discharge pursuant to §523(a)(9). However, this particular 28 || amendment is not pertinent to this particular case. 10

1 In a proceeding to determine nondischargeability under Section 523(a)(9), the claimant must 2 the following three (3) elements: (1) an existing debt based on death or personal injury; (2) 3 |jcaused by operation of a motor vehicle, vessel or aircraft; and (3) which was being operated 4 jjunlawfully under state law due to debtor’s intoxication. Alan N. Resnick & Henry J. Sommer, 4 5 ||Collier on Bankruptcy 523.15 (15" ed. 2009). A claimant must prove the above-referenced elements 6 a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L.Ed. 2d 7 4755 (1991). A claimant need not establish a causal link between debtor’s intoxication and the death 8 |or personal injury. See In re Wagner, 2007 U.S. Dist. Lexis 22769 (E.D. Pa. Mar. 27, 2007); Le Merle 9 |v. Thornton (In re Thornton), 2004 Bankr. Lexis 1289 (Bankr. S.D. Fla. July 30, 2004); In re 10 |Kupinsky, 133 B.R. 993, 998 (Bankr. S.D. Ill. 1991); Contreras v. Dale (In re Dale), 199 B.R. 1014, 11 1022 (Bankr. S.D. Fla. 1995); Whitson v. Middleton, 898 F. 2d. 950, 953 (4" Cir. 1990). 12 Legal records from a prior state court proceeding in which there is a finding with respect to 13 |\debtor’s liability may provide a sufficient basis for the bankruptcy court to ascertain that such claim 14 nondischargeable pursuant to Section 523(a)(9) of the Bankruptcy Code. See In re Pahule, 849 F. 15 1056 (7" Cir. 1988). However, if the legal records from a prior state proceeding are insufficient 16 prove nondischargeability of a debt, the claimant may submit to the bankruptcy court additional 17 evidence to substantiate the necessary elements in a nondischargeability action under Section 18 ]523(a)(9) of the Bankruptcy Code. Alan N. Resnick & Henry J. Sommer, 4 Collier on Bankruptcy 19 9523.15 ed. 2009). 20 In the instant case, Defendants-Creditors have simply cut corners and thus, have failed to 21 jjabide by the Bankruptcy Code and by the Federal Rules of Bankruptcy Procedure, in particular since 22 never obtained a finding either from state court or from this court asserting that their claim 23 satisfied the three (3) necessary elements for a claim to be held nondischargeable under 24 Section 523(a)(9) of the Bankruptcy Code. Moreover, the state court judgment by stipulation of the 25 claim is barren of any findings related to debtor’s liability stemming from an accident caused by 26 |\debtor’s unlawful (due to his intoxication) operation of a motor vehicle under state law. The 27 \\judgment by stipulation does not even reference the criminal judgment in case number T99-866 in 28 debtor Rafael A. Maldonado Rosado was convicted of driving a motor vehicle under the 11

1 jfinfluence of alcohol, in violation of Article 8, Section 5-801 of Act Number 141 of July 20, 1960. 2 all of Defendants-Creditors’ actions (such as the public sale of Plaintiffs-Debtors residence and 3 execution of the deed of judicial sale of the real estate property) related to the execution of the 4 court judgment of the tort claim are null and void, given that there was never a finding by either 5 state or bankruptcy court that such claim was nondischargeable under Section 523(a)(9) of the 6 ||Bankruptcy Code. Furthermore, Defendants-Creditors should know that, “... a creditor who proceeds 7 jjoutside the bankruptcy court without first seeking a determination of dischargeability or relief from 8 |jthe discharge injunction runs the risk of being held in contempt for violation of the discharge 9 jinjunction if the debt is determined to be dischargeable.” In re Jones, 348 B.R. at 719 fn. 3 citing 10 ||Cherry v, Arendall (In re Cherry), 247 B.R. 176 (Bankr. E.D. Va. 2000). 11 Conclusion 12 For the reasons stated above, this court finds that Plaintiffs’ complaint pleads various claims 13 |for which relief may be granted in this adversary proceeding. 14 In view of the foregoing, Defendants-Creditors’ second motion to dismiss is hereby DENIED 15 Defendants-Creditors shall file an answer to the complaint within twenty (20) days. 16 In San Juan, Puerto Rico, this (J day of October 2009. 17

ENRIQUE S. LAMOUTTE 19 USS. Bankruptcy Judge 20 21 22 23 24 25 26 27 28 12