In re Triple A & R Capital Investment, Inc.

519 B.R. 581, 72 Collier Bankr. Cas. 2d 897, 2014 Bankr. LEXIS 4316, 2014 WL 5092467
CourtUnited States Bankruptcy Court, D. Puerto Rico
DecidedOctober 9, 2014
DocketNo. 14-04744
StatusPublished
Cited by2 cases

This text of 519 B.R. 581 (In re Triple A & R Capital Investment, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Triple A & R Capital Investment, Inc., 519 B.R. 581, 72 Collier Bankr. Cas. 2d 897, 2014 Bankr. LEXIS 4316, 2014 WL 5092467 (prb 2014).

Opinion

OPINION & ORDER

BRIAN K. TESTER, Bankruptcy Judge.

Before the court is PRLP 2011 Holdings LLC, (“PRLP”) Motion for Relief From Stay Under § 362(e) [Dkt. No. 36]; Debt- or’s Reply and Exhibits [Dkt. No. 43 & 45]; and PRLP’s Reply [Dkt. No. 52], Following the preliminary hearing held on September 3, 2014, the court took under advisement the issue of whether Debtor’s prepetition waiver of the protection of the automatic stay and post petition ratification of said waiver were valid and binding on the Debtor. At the oral argument, the Debtor raised the argument that Article 4 of the Civil Code of Puerto Rico 31 L.P.R.A. § 4, governed the prepetition agreements. Debtor proffered that Article 4 made null and void said prepetition waiver because under Puerto Rico law it is indispensable that the right to be waived exists at the time of the negotiation. Moreover, the Debtor cannot be bound by acts taken by them prepetition because they lacked capacity to act on behalf of debtor in possession when the agreements were signed and as such are unenforceable under the Bankruptcy Code.

Prior to the Petition Date, on November 25, 2009, Banco Popular de Puerto Rico (“BPPR”), now PRLP, executed a “Forbearance and Amendment Agreement” (the “Forbearance Agreement”) with Debtor and Ms. Luisette Cabañas Collin (and jointly with Debtor, the “Obligors”). The Forbearance Agreement was subsequently supplemented and ratified by the Obligors through the “First Amendment to Forbearance and Amendment Agreement” dated January 25, 2010 (the “Amended Forbearance Agreement”), as well as the October 17, 2012 “Forbearance Agreement” executed between PRLP and the Obligors (the “PRLP Forbearance Agreement”). Section 15(b) of the November 25, 2009 Forbearance Agreement, executed by and between Debtor, LCC, and BPPR (now PRLP), provides, in pertinent part, as follows:

Automatic Stay. Each Loan Party hereby stipulates that, at Bank’s option, Bank will be entitled to an immediate and absolute lifting of any automatic stay of the enforcement of Bank’s remedies under this Agreement, the Forbearance Documents and the Loan Documents, at law or in equity (including, without implied limitation, the provisions of 11 U.S.C. § 362, as amended) which might be accorded to a Loan Party any Debt Relief Proceeding. Each Loan Party agrees that it will not contest any [583]*583application by Bank to lift or vacate any such stay.

The waiver language referenced at the Forbearance Agreement was consequently ratified in the Amended Forbearance Agreement subscribed between the Obli-gors and BPPR (now PRLP) on January 25, 2010. On October 17, 2012, the Obli-gors executed the PRLP Forbearance which states at section 8:

Consent to Relief from Automatic Stay. As a material inducement for the Creditor to enter into this Agreement, in recognition of the risks associated with the Creditor’s execution and performance of this Agreement, and in consideration of the recitals and mutual covenants contained herein, and for other good and valuable consideration, including the agreement of the Creditor to forbear from the exercise of its rights and remedies, the receipt and sufficiency of which are hereby acknowledged, each of the Debtors hereby agrees and consents that if any Debtor shall (1) file or be subject of any petition under Title 11 of the U-S.Code, as the same may be amended from time to time (the “Bankruptcy Code”), (2) be the subject of any order for relief issued under the Bankruptcy Cbde, (3) file or be the subject of any petition seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency or other relief for debtors (individually, an “Insolvency Proceeding” and collectively, “Insolvency Proceedings”), (4) seek consent to or acquiesce in the appointment of any trustee, receiver, conservator or liquidator, or (5) be subject of any order, judgment or decree entered by any court of competent jurisdiction approving a petition filed against any of the Debtors in any Insolvency Proceeding, then the Creditor shall thereupon be entitled to relief from any automatic stay imposed by § 362 of the Bankruptcy Code, or form any other stay or suspension of remedies imposed in any other manner with respect to the exercise of the rights and remedies otherwise available to the Creditor under the Financing Agreements and/or the other Loan Documents, and as otherwise provided by law, and each of the Debtors hereby expressly and unconditionally waives the benefit of such automatic stay and consents and agrees to raise no objection to such relief.
The Debtors hereby represent, agree and acknowledge that such relief: (a) will not prejudice the unsecured credi- • tors of the Debtors, as, among other reasons, (i) all of the Debtors’ assets are fully encumbered to the Creditor and (ii) the Debtors have no equity in any of their assets; (b) no significant benefits (if any) will be achieved for unsecured creditors through a chapter 11 reorganization and/or chapter 11 plan; and (c) the Creditor has agreed to the forbearance and moratorium described herein based on the Debtors’ representation that they will not commence an Insolvency proceeding and, accordingly, the filing of any Insolvency Proceeding will (i) be for the sole purpose of delaying the Creditor’s efforts to realize and collect upon the Collateral and/or pursuant to the provisions and terms set forth in this Agreement and (ii) constitute a bad-faith bankruptcy filing under the Bankruptcy Code.

A prepetition waiver is an agreement entered into by a debtor prior to bankruptcy pursuant to which the debtor agrees to waive the protection of the automatic stay with respect to a secured creditor or agrees not to oppose any attempt by such creditor to obtain stay relief in the [584]*584event of the debtor’s bankruptcy. Although stay waivers were long thought to be unenforceable as against public policy, an increasing number of courts are now enforcing them. There is no controlling law on this subject in this District or this Circuit. A review of the cases nationwide that addressed this issue indicate a trend that appears toward the enforcement of stay waivers. The difficult issue of whether prepetition stay waivers are enforceable, reflects the tension between the public policies favoring out of court workouts, on the one hand, and protecting the collective interest of the debtor’s creditors, on the other. Bankruptcy courts that have tackled this issue have used different approaches with conflicting results. Three basic approaches have emerged: (1) uphold the stay waiver in broad unqualified terms on the basis of freedom of contract;1 (2) reject the stay waiver as unenforceable per se as against public policy;2 and (3) treat the waiver as a. factor in deciding whether “cause” exists to lift the stay.3 This last approach has gained ground in recent years.4 It is important to note that the courts are in agreement that a prepetition waiver of the automatic stay, even if enforceable, does not enable the secured creditor to enforce its lien without first obtaining stay relief from the bankruptcy court. This requirement is satisfied in this case because PRLP indeed filed a motion requesting the lift of stay.

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Cite This Page — Counsel Stack

Bluebook (online)
519 B.R. 581, 72 Collier Bankr. Cas. 2d 897, 2014 Bankr. LEXIS 4316, 2014 WL 5092467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-triple-a-r-capital-investment-inc-prb-2014.