PR AAA Portfolio Bond Fund v. Employees Retirement System

• Court: Court of Appeals for the First Circuit
• Decided: January 30, 2019
• Docket: 18-1836P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 18-1836 18-1837

IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

Debtors.

ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND, LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND, L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OAKTREE OPPORTUNITIES FUND IX, L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE VALUE OPPORTUNITIES FUND, L.P.; OCHER ROSE, L.L.C.; SV CREDIT, L.P.,

Movants, Appellants,

PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I, INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.; PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED & U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO RICO TARGET MATURITY FUND, INC.; UBS IRA SELECT GROWTH & INCOME PUERTO RICO FUND,

Movants,

v.

THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

Debtor, Appellee,

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES; OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF PUERTO RICO,

Movants, Appellees.

No. 18-1841

IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I, INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.; PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED & U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO RICO TARGET MATURITY FUND, INC.,

Movants, Appellants.

ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND, LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND, L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND, L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER ROSE, L.L.C.; SV CREDIT, L.P.; UBS IRA SELECT GROWTH & INCOME PUERTO RICO FUND,

THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES; OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF PUERTO RICO,

No. 18-1855

IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

Plaintiff, Appellee,

OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF PUERTO RICO,

Interested Party, Appellee,

ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND, LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND, L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND, L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER ROSE, L.L.C.; SV CREDIT, L.P.,

Defendants, Appellants,

PUERTO RICO AAA PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA PORTFOLIO TARGET MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO FIXED INCOME FUND V, INC.; PUERTO RICO FIXED INCOME FUND III, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I, INC.; PUERTO RICO INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.; PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO MORTGAGE- BACKED & U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO RICO FUND, INC.; TAX-FREE PUERTO RICO TARGET MATURITY FUND, INC.; UBS IRA SELECT GROWTH & INCOME PUERTO RICO FUND, Defendants.

No. 18-1858

IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF PUERTO RICO,

PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I, INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.; PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED & U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO RICO TARGET MATURITY FUND, INC.,

ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND, LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND, L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND, L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER ROSE, L.L.C.; SV CREDIT, L.P.; UBS IRA SELECT GROWTH & INCOME PUERTO RICO FUND,

Defendants.

No. 18-1868

IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I, INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.; PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED & U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO RICO TARGET MATURITY FUND, INC.,

ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND, LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND, L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND, L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER ROSE, L.L.C.; SV CREDIT, L.P.; UBS IRA SELECT GROWTH & INCOME PUERTO RICO FUND,

THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES; OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF PUERTO RICO; OFFICIAL COMMITTEE OF UNSECURED CREDITORS,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Laura Taylor Swain,* U.S. District Judge]

* Of the Southern District of New York, sitting by designation. Before

Lynch, Stahl, and Kayatta, Circuit Judges.

Bruce Bennett, with whom Benjamin Rosenblum, James M. Gross, Geoffrey S. Stewart, Sparkle L. Sooknanan, Parker A. Rider- Longmaid, Jones Day, Alfredo Fernández-Martínez, and Delgado & Fernández, LLC were on brief, for Altair Global Credit Opportunities Fund (A), LLC; Andalusian Global Designated Activity Company; Glendon Opportunities Fund, LP; Mason Capital Master Fund LP; Nokota Capital Master Fund, L.P.; Oaktree-Forrest Multi- Strategy, L.L.C. (Series B); Oaktree Opportunities Fund IX, L.P.; Oaktree Opportunities Fund IX, (Parallel 2), L.P.; Oaktree Value Opportunities Fund, L.P.; Ocher Rose, L.L.C; SV Credit, L.P. Jason N. Zakia, with whom Glenn M. Kurtz, John K. Cunningham, White & Case LLP, José C. Sánchez-Castro, Alicia I. Lavergne- Ramírez, Maraliz Vázquez-Marrero, and Sanchez Pirillo LLC were on brief, for Puerto Rico AAA Portfolio Bond Fund, Inc.; Puerto Rico AAA Portfolio Bond Fund II, Inc.; Puerto Rico AAA Portfolio Target Maturity Fund, Inc.; Puerto Rico Fixed Income Fund, Inc.; Puerto Rico Fixed Income Fund II, Inc.; Puerto Rico Fixed Income Fund III, Inc.; Puerto Rico Fixed Income Fund IV, Inc.; Puerto Rico Fixed Income Fund V, Inc.; Puerto Rico GNMA and U.S. Government Target Maturity Fund, Inc.; Puerto Rico Investors Bond Fund I, Inc.; Puerto Rico Investors Tax-Free Fund, Inc.; Puerto Rico Investors Tax-Free Fund II, Inc.; Puerto Rico Investors Tax-Free Fund III, Inc.; Puerto Rico Investors Tax-Free Fund IV, Inc.; Puerto Rico Investors Tax-Free Fund V, Inc.; Puerto Rico Investors Tax-Free Fund VI, Inc.; Puerto Rico Mortgage-Backed & U.S. Government Securities Fund, Inc.; Tax-Free Puerto Rico Fund, Inc.; Tax-Free Puerto Rico Fund II, Inc.; Tax-Free Puerto Rico Target Maturity Fund, Inc.; UBS IRA Select Growth & Income Puerto Rico Fund. Jeffrey W. Levitan, with whom Timothy W. Mungovan, John E. Roberts, Michael R. Hackett, William D. Dalsen, Martin J. Bienenstock, Mark D. Harris, Kevin J. Perra, and Proskauer Rose LLP were on brief, for the Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico. Richard B. Levin, with whom Catherine Steege, Melissa Root, Ian Heath Gershengorn, Lindsay C. Harrison, William K. Dreher, Robert Gordon, Richard Levin, Jenner & Block LLP, A.J. Bennazar- Zequeira, and Bennazar, García, & Milián, C.S.P. were on brief, for the Official Committee of Retired Employees of the Commonwealth of Puerto Rico. Michael Shih, Appellate Division, Civil Staff, Joseph H. Hunt, Assistant Attorney General, Mark R. Freeman, and Michael S. Raab, Appellate Division, Civil Staff, for the United States, amicus curiae.

January 30, 2019 LYNCH, Circuit Judge. These appeals involve bonds

issued in 2008 by the Employees Retirement System of the Government

of the Commonwealth of Puerto Rico1 (the "System"), which were

bought by bondholders (the "Bondholders"), the appellants here.

The bond documentation offered as security certain property

belonging or owed to the System, as defined in a "Pension Funding

Bond Resolution." The Bondholders claim that they have a perfected

security interest in that property under Puerto Rico's version of

the Uniform Commercial Code ("UCC").

Through the Financial Oversight and Management Board for

Puerto Rico (the "Oversight Board"), the System filed suit in the

district court on July 21, 2017, seeking declaratory judgments on

several issues related to the validity, breadth, and perfection of

the Bondholders' asserted security interest, and regarding the

System's compliance with a stipulation between the parties (the

"January 2017 Stipulation"). The Bondholders brought nine

counterclaims concerning their asserted security interest as well

as an alleged violation of the January 2017 Stipulation. After

1 We use this name here rather than "Retirement System for Employees of the Government of the Commonwealth of Puerto Rico," because the System, through the Financial Oversight and Management Board for Puerto Rico, filed its complaint in the district court under this name and refers to itself by this name in its brief to this court. In this opinion, the "ERS name" refers to the term beginning with "Employees Retirement System"; the "RSE name" refers to the term beginning with "Retirement System for Employees."

- 10 - both sides moved for summary judgment, the district court ruled in

favor of the System, finding that the Bondholders' interest was

not perfected and so could be avoided under 48 U.S.C. § 2161(a),

that there had been no violation of the January 2017 Stipulation,

and that two of the Bondholders' counterclaims should be dismissed

with prejudice. The Fin. Oversight and Mgmt. Bd. for P.R. v.

Altair Glob. Credit Opportunities Fund (a), LLC (In re: The Fin.

Oversight and Mgmt. Bd. for P.R.), 590 B.R. 577 (D.P.R. 2018). We

are told the dollar value of the security for the bonds at stake

is about $2.9 billion. The Bondholders appealed.

We agree with the district court on the particular facts

here that the UCC financing statements filed in 2008 (the "2008

Financing Statements") did not perfect the Bondholders' security

interest, as they lacked a sufficient description of collateral.

But we find that the financing statement amendments filed in 2015

and 2016 (together, the "Financing Statement Amendments")

satisfied the filing requirements for perfection when read in

conjunction with the 2008 Financing Statements. We reverse the

district court's determination on the satisfaction of filing

requirements for perfection by amendment, and hold that the

Bondholders satisfied the filing requirements for perfection as of

December 17, 2015.

Because the Bondholders' security interest was

perfected, this interest cannot be avoided under the Puerto Rico

- 11 - Oversight, Management, and Economic Stability Act's ("PROMESA")

incorporation of parts of the Bankruptcy Code, including 11 U.S.C.

§ 544(a), and so we do not reach the issue of whether PROMESA and

other relevant Commonwealth law would allow for the retroactive

avoidance of unperfected liens.2 Accordingly, we vacate the

district court's holding on avoidance of the Bondholders' security

interest. We vacate the dismissal of two of the Bondholders'

counterclaims and remand to the district court for further

proceedings in light of this opinion. Finally, we affirm the

dismissal of the Bondholders' claim regarding the January 2017

Stipulation.

As to the first issue, concerning the 2008 Financing

Statements alone, we decide narrowly on the particular facts

presented. As to the issue of perfection by amendment, also

narrowly decided, this case presents a unique confluence of

circumstances involving two languages and a translation,

particularly regarding the sufficient name of the System under

Article 9 of the UCC (Secured Transactions), as adopted by the

Commonwealth. Puerto Rico recognizes two official statutory

languages. P.R. Laws Ann. tit. 1, § 59. We face a statutory

amendment from 2013 (officially translated in 2014) that variously

2 Although we do not reach this issue, we acknowledge with appreciation the assistance provided by the United States Department of Justice in submitting a brief as amicus curiae in support of the appellees.

- 12 - uses two English terms when translating the same unvaried Spanish

term for the name of the System. Id. tit. 3, §§ 761, 763. Further,

past official translations, and the System itself, have

consistently used the ERS name (including in many court filings)

for over sixty years. We craft our holding narrowly to accommodate

the very unusual circumstances presented by a new translation that

is, on its face, inconsistent, that varies from every other formal

version both before and after its presentation, and that arises in

a context in which there is no realistic likelihood that anyone

would search the Department of State of the Government of Puerto

Rico's (the "P.R. Department of State") records only under one of

the two forms of the name that appear in the English translation

of the amended statute.

I.

The System is a trust and government agency created in

1951 by an Act of the Commonwealth. Law No. 447 of May 15, 1951,

1951 P.R. Laws 1298 (the "1951 Enabling Act") (codified as amended

at P.R. Laws Ann. tit. 3, §§ 761 et seq.). The System is structured

to provide pensions and other retirement benefits to employees and

officers of the Commonwealth government, members and employees of

the Commonwealth's Legislative Assembly, and officers and

employees of the Commonwealth's municipalities and public

corporations. P.R. Laws Ann. tit 3, § 764. It is designated as

"independent and separate" from other Commonwealth agencies. Id.

- 13 - § 775. Until legislation that went into effect on July 1, 2017,

the System was funded by mandatory contributions from employees

and employers, and by the System's investment earnings. See

Concurrent Resolution 188 of the House of Representatives of the

Government of Puerto Rico; Law No. 106 of August 23, 2017.

As of 2008, the Enabling Act allowed the System to incur

debt when the Board of Trustees of the System so authorized. P.R.

Laws Ann. tit. 3, § 779(d) (2008). Seeking to decrease an unfunded

liability of approximately $9.9 billion, the Board of Trustees

adopted a "Pension Funding Bond Resolution" (the "Resolution") on

January 24, 2008. The Resolution allowed for the issuance of about

$2.9 billion in bonds. The Resolution was made publicly available

on several governmental websites, including on the Government

Development Bank for Puerto Rico's website and on the System's own

website.

The Bondholders hold some of those bonds issued by the

System. The System executed a security agreement (the "Security

Agreement"), which purports to grant the Bondholders a security

interest in "Pledged Property" belonging or owed to the System.

"Pledged Property" was defined in the Resolution but not in the

Security Agreement. The Resolution's definition included the

required employer contributions to the System and proceeds from

- 14 - these contributions.3 The Security Agreement did not itself define

or otherwise describe "Pledged Property." Rather, it stated that

"[a]ll capitalized words not defined herein shall have the meaning

ascribed to them in the Resolution." But the Resolution was not

attached to the Security Agreement, and the Security Agreement did

not even say what types of property were pledged, whether the

Resolution was available to the public, or where the Resolution

3 The Resolution defined "Pledged Property" as:

1. All Revenues. 2. All right, title and interest of the System in and to Revenues, and all rights to receive the same. 3. The Funds, Accounts, and Subaccounts held by the Fiscal Agent, and moneys and securities and, in the case of the Debt Service Reserve Account, Reserve Account Cash Equivalents, from time to time held by the Fiscal Agent under the terms of this Resolution, subject to the application thereof as provided in this Resolution and to the provisions of Sections 1301 and 1303. 4. Any and all other rights and personal property of every kind and nature from time to time hereafter pledged and assigned by the System to the Fiscal Agent as and for additional security for the Bonds and Parity Obligations. 5. Any and all cash and non-cash proceeds, products, offspring, rents and profits from any of the Pledged Property mentioned described in paragraphs (1) through (4) above, including, without limitation, those from the sale, exchange, transfer, collection, loss, damage, disposition, substitution or replacement of any of the foregoing.

The Resolution's definition of "Revenues" included, among other things, "All Employers' Contributions."

- 15 - could be found.

Security interests could be perfected by filing

financing statements comporting with the requirements of Article

9 of the UCC, as adopted by the Commonwealth. In 2008, those

requirements included, among other things, that a financing

statement "contain[] a statement indicating the types, or

describing the items, of collateral." P.R. Laws Ann. tit. 19,

§ 2152(1) (2008).

The Security Agreement specified that "[the System]

shall cause UCC financing and continuation statements to be filed,

as appropriate, and the Secured Party shall not be responsible for

any UCC filings." On or about June 24, 2008, and July 2, 2008,4

two financing statements (the 2008 Financing Statements) related

to the System's bonds, as described above, were filed with the

P.R. Department of State. The 2008 Financing Statements each used

a standard "Financing Statement" form provided by the P.R.

Department of State, where such statements are located. Initial

financing statements are sometimes referred to as "UCC-1"

statements.

The 2008 Financing Statements described the collateral

as "[t]he pledged property described in the Security Agreement

4 The listed dates -- June 24 and July 2 -- are the dates stamped on the documents by the filing officer. The same is true for the listed dates for the Financing Statement Amendments.

- 16 - attached as Exhibit A hereto and by reference made a part thereof."

The Security Agreement, Exhibit A, was attached to each of the

2008 Financing Statements as filed but, as said, did not itself

describe the "Pledged Property" except as it purported to do by

reference to an unattached other document. That is, the

Resolution, which contained the full definition of "Pledged

Property" and other key terms, was not attached. The 2008

Financing Statements do not otherwise describe or define the

"Pledged Property" (meaning the collateral). In short, the

documents filed with the P.R. Department of State described the

collateral only by stating that it was "Pledged Property" described

in a document that could only be found somewhere outside the P.R.

Department of State.

Between the filing of the 2008 Financing Statements and

the filing of the Financing Statement Amendments in 2015 and 2016,

the Commonwealth repealed its earlier version of Article 9 of the

UCC and enacted a revised version, Law No. 21 of January 17, 2012,

2012 P.R. Laws 162 (codified at P.R Laws Ann. tit. 19, §§ 2211-

2409). The updated law went into effect on January 17, 2013, one

year after its approval. See P.R. Laws Ann. tit. 19, § 2211).

The new version of Article 9 made modest changes to the

requirements for financing statements, and made the effective life

of financing statements five years rather than ten years.

On or about December 17, 2015, and January 16, 2016, the

- 17 - four Financing Statement Amendments were filed. These filings all

used a standard "Financing Statement Amendment" form provided by

the P.R. Department of State. The Financing Statement Amendments

describe the collateral as "[t]he Pledged Property and all proceeds

thereof and all after-acquired property as described more fully in

Exhibit A attached hereto and incorporated by reference." Unlike

the 2008 Financing Statements, Exhibit A contained a full

definition of "Pledged Property" drawn from the Resolution. The

Financing Statement Amendments provide, in the attached Exhibit A,

that the debtor is the "Employees Retirement System of the

Government of the Commonwealth of Puerto Rico." That naming of

the debtor is at issue in the argument concerning whether the

Financing Statement Amendments sufficed to satisfy the filing

requirements for perfection.5

The P.R. Department of State certified in March 2017

that a search of the Commonwealth's UCC records under the name

"Employees Retirement System of the Government of the Commonwealth

of Puerto Rico" revealed the 2008 Financing Statements and the

Financing Statement Amendments. A copy of a UCC search report

from October 17, 2017, for a search performed by Wolters Kluwer on

behalf of the Bondholders, indicates the same. None of the 2008

5 The issue of the proper name of the System did not arise until February 28, 2014, when a translation of the 2013 amended Enabling Act was published.

- 18 - Financing Statements and the Financing Statement Amendments had

been removed from the P.R. Department of State's records as of

October 2017.

After the filing of the 2008 Financing Statements and

before the filing of the Financing Statement Amendments, the

Commonwealth's legislature amended the Enabling Act in 2013. Law

No. 3 of April 4, 2013, 2013 P.R. Laws 39 (codified at P.R. Laws

Ann. tit 3, § 761 et seq.). From the original Enabling Act in

1951 until 2014, the English translation of the Enabling Act, as

codified, used "Employees Retirement System" as the first part of

the name of the System, when translating the Spanish term "Sistema

de Retiro de los Empleados." Compare Law No. 447 of May 15, 1951,

1951 P.R. Laws 1298 (English, "Employees Retirement System") with

id. at 1299 (Spanish, "Sistema de Retiro de Los Empleados"). The

legislature had amended the Enabling Act numerous times before

2013, including changing the name of the System in 2004 by removing

"and its Instrumentalities" and by replacing "Government of Puerto

Rico" with "Government of the Commonwealth of Puerto Rico." See

P.R. Laws Ann. tit. 3, § 761 (2006). But the English translation

of the System as, in part, "Employees Retirement System," remained

the same. See P.R. Laws Ann. tit. 3, § 761 (2011); P.R. Laws Ann.

tit. 3, § 761 (2006); P.R. Laws Ann. tit. 3, § 761 (1988).

The English language translation of the 2013 amended

Enabling Act was published on February 28, 2014, more than ten

- 19 - months after the 2013 Act's April 4, 2013, approval in Spanish and

about seven months after its effective date.6 As codified, the

translation refers to the System as both "Retirement System for

Employees of the Government of the Commonwealth of Puerto Rico"

and "Employees Retirement System of the Government of the

Commonwealth of Puerto Rico." P.R. Laws Ann. tit. 3, §§ 761,

763(36). In many sections, the translation of the Enabling Act

continues to use the prior version of the English name ("Employees

Retirement System of the Government of the Commonwealth of Puerto

Rico"). Such continuity in the translation carries over to the

"Statement of Motives" section and to the definition of the

shorthand "System," as well as to dozens of other sections. In

Section 1-10, which describes how the System was "to be

designated," the translation uses the English formulation,

"Retirement System for Employees of the Government of the

Commonwealth of Puerto Rico" for the unchanged Spanish original,

"Sistema de Retiro de los Empleados del Gobierno del Estado Libre

Asociado de Puerto Rico." Law No. 3 of April 4, 2013, 2013 P.R.

Laws 64.

Months after the Financing Statement Amendments were

6 Similar or lengthier gaps between the passage of laws and the promulgation of their official translations have occurred in the Commonwealth. For example, the official English translation of the 2004 amendment to the Enabling Act (passed on September 15, 2004), Law No. 296 of September 15, 2004, was certified and published on March 13, 2007.

- 20 - filed in late 2015 and early 2016, Congress enacted PROMESA, 48

U.S.C. § 2101 et seq., on June 30, 2016. Among other things,

PROMESA created the Oversight Board and granted the Board a range

of powers over the Commonwealth's finances, see, e.g., id. §§ 2121-

2129, including the general mandate to craft "a method [for the

Commonwealth] to achieve fiscal responsibility and access to the

capital markets," id. § 2121(a).

PROMESA incorporated by reference certain provisions of

the Bankruptcy Code, id. § 2161(a), including the "strong-arm"

provision at 11 U.S.C. § 544(a).7 That provision "set[s] out the

7 Section 544(a) provides:

The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by — (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists; (2) a creditor that extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists; or

- 21 - circumstances under which a trustee" may permissibly "pursue

avoidance" of certain interests. Merit Mgmt. Grp., LP v. FTI

Consulting, Inc., 138 S. Ct. 883, 888 (2018).

Pursuant to Section 301(c)(7) of PROMESA, the Oversight

Board is the "trustee" as that term is defined in the Bankruptcy

Code (except under one circumstance that is not relevant here, see

11 U.S.C § 926). 48 U.S.C. § 2161(c)(7). PROMESA also provides

that "Subchapters III and VI shall apply with respect to debts,

claims, and liens . . . created before, on, or after [June 30,

2016]." Id. § 2101(b)(2).

PROMESA's enactment triggered an automatic temporary

stay, under Section 405, on creditors' remedies against the

Commonwealth and its property. Id. § 2194(a)-(b). The Bondholders

moved to lift that stay, but that motion was denied by the district

court. See Peaje Invs. LLC v. García-Padilla, 845 F.3d 505, 510

(1st Cir. 2017). This court vacated the district court's decision

in part and remanded for further proceedings, id. at 516, and

(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists.

11 U.S.C. § 544(a).

- 22 - expressed general concerns with the protection afforded for the

Bondholders' property, id. at 511-12.

On remand, the System and the Bondholders entered into

the January 2017 Stipulation, in order to resolve Altair Global

Credit Opportunities Fund (A), LLC v. García-Padilla, No. 16-cv-

2696. The January 2017 Stipulation required, in relevant part,

that "Employers' Contributions (as defined in the ERS Bond

Resolutions) received by the ERS during the pendency of the stay

imposed pursuant to [PROMESA] § 405 shall be transferred by the

ERS to [a segregated account] for the benefit of the holders of

the ERS bonds."

On May 3, 2017, the Oversight Board filed a petition

under Title III of PROMESA on behalf of the Commonwealth. On May

21, 2017, the Oversight Board filed a Title III petition on behalf

of the System, which triggered an automatic stay of litigation

against the System. The Bondholders moved to lift the stay, and

the parties entered into a Joint Stipulation that resolved the

Bondholders' motion. The Joint Stipulation stated that an

adversary proceeding would be filed by the System on or before

July 21, 2017, and limited the scope of the proceeding to the

"validity, priority, extent and enforceability" of the

Bondholders' claimed security interest and the System's rights

regarding employer contributions received during May 2017, as well

as relevant counterclaims by the Bondholders.

- 23 - On July 21, 2017, the System, through the Oversight

Board, brought this case in federal district court against the

Bondholders, seeking declarations about the status, scope, and

validity of the Bondholders' claimed security interest in the

"Pledged Property," and about the System's compliance with the

January 2017 Stipulation. See In re: Fin. Oversight & Mgmt. Bd.

for P.R., 590 B.R. at 583.8 The Bondholders asserted nine

counterclaims, requesting declarations concerning their asserted

security interest as well as an alleged violation of the January

2017 Stipulation.

The parties both moved for summary judgment. Id. The

System sought judgment in its favor on its four claims; the

Bondholders sought the dismissal of all of the System's claims as

well as judgment in their favor on all of their counterclaims.

Id.

On August 17, 2018, the district court granted the

System's motion for summary judgment in part and denied the

Bondholders' cross-motion in its entirety. Id. at 599-600. The

8 In other litigation before the commencement of the System's Title III case, the System had stated that at least some of the Bondholders had "valid and enforceable liens in over hundreds of millions of dollars of ERS revenue." Respondent Employees Retirement System of the Government of Puerto Rico's Brief in Opposition to Motion for Relief from the PROMESA Automatic Stay at 10, Altair Global Credit Opportunities Fund (A), LLC. v. Garcia Padílla, Case No. 3:16-cv-02696-FAB (D.P.R. Oct. 26, 2016). The district court noted this acknowledgment. In re: Fin. Oversight & Mgmt. Bd. for P.R., 590 B.R. at 587.

- 24 - district court held that any security interest the Bondholders

might possess had not been perfected by the 2008 Financing

Statements, because those Statements did not contain an adequate

description of the collateral as required under Article 9 in 2008.

Id. at 589 (citing P.R. Laws Ann. tit. 19, § 2152(1) (2008)). The

district court then determined that the Financing Statement

Amendments did not perfect the Bondholders' security interest,

because they did not identify the debtor by its correct legal name,

which the court determined was the RSE name, as the court felt was

required by the version of Article 9 operative in 2015 and 2016.

Id. at 592 (citing P.R. Laws Ann. tit. 19, § 2322(a)(1)).

Starting from the determination that the Bondholders'

interest was unperfected when the Title III case began, the

district court then held that the Oversight Board, as trustee,

could avoid the liens under the strong-arm provision at 11 U.S.C.

§ 544(a), which PROMESA incorporates, see 48 U.S.C. § 2161(a). In

re: Fin. Oversight & Mgmt. Bd. for P.R., 590 B.R. at 592-98. That

is, Commonwealth law did not prevent a hypothetical creditor from

obtaining a judgment lien against the System's assets at the time

when the Title III case commenced. Id. at 594. The district court

thus invalidated the Bondholders' interests pursuant to Section

544(a). The district court then held that the System did not

violate the January 2017 Stipulation because the adversary

proceedings were limited to claims or counterclaims related to

- 25 - employer contributions received during May of 2017, and the

System's obligation to transfer such funds to a segregated account

clearly ended with the PROMESA stay on May 1, 2017. Id. at 599.

Following a joint response to an order to show cause as

to why the Bondholders' counterclaims One through Four "ought not

to be dismissed for failure to state a claim upon which relief may

be granted," the district court dismissed the Bondholders'

counterclaims with prejudice on September 5, 2018.

The Bondholders timely appealed, and this court granted

motions to consolidate these appeals.

II.

This case comes on summary judgment. In reviewing grants

of summary judgment, "we take as true the facts documented in the

record below, resolving any factual conflicts or disparities in

favor of the nonmovant." Colt Def. LLC v. Bushmaster Firearms,

Inc., 486 F.3d 701, 705 (1st Cir. 2007). Nearly all of the

operative facts are undisputed here, and the grant of summary

judgment turns primarily on interpretations of law, which this

court reviews de novo, or mixed questions of law and fact, for

which "we employ a degree-of-deference continuum, providing non-

deferential plenary review for law-dominated questions and

deferential review for fact-dominated questions." Johnson v. Bos.

Pub. Sch., 906 F.3d 182, 191 (1st Cir. 2018) (internal quotation

marks omitted).

- 26 - We first consider perfection by the 2008 Financing

Statements on their own, and then in conjunction with the later

Financing Statement Amendments, before briefly considering

avoidance under PROMESA. We then address the dismissal of two of

the Bondholders' counterclaims and the alleged violation of the

January 2017 Stipulation.

A. Perfection by the 2008 Financing Statements

The Bondholders argue that the initial 2008 Financing

Statements perfected their security interest. Under the former

version of Article 9 operative in 2008,

[a] financing statement is sufficient if it [1] gives the names of the debtor and the secured party, [2] is signed by the debtor, [3] gives an address of the secured party from which information concerning the security interest may be obtained, [4] gives a mailing address of the debtor and [5] contains a statement indicating the types, or describing the items, of collateral.

P.R. Laws Ann. tit. 19, § 2152(1) (2008). There is no dispute

that the 2008 Financing Statements met the first four requirements

at the time they were filed, and so those elements are not

considered here. We also stress that the validity of the

underlying Security Agreement is not at issue. Security agreements

are private contracts between parties and do not have the same

public notice purpose as financing statements. See Webb Co. v.

First City Bank (In re Softalk Publ'g Co., Inc.), 856 F.2d 1328,

1330 (9th Cir. 1988). Instead, our discussion is limited only to

- 27 - whether the 2008 Financing Statements "contain[] a statement

indicating the types, or describing the items, of collateral," as

required by the then-existing statute. See P.R. Laws Ann. tit.

19, § 2152(1) (2008).

The Bondholders argue that we should adopt a lenient

understanding of the collateral description requirement, such that

the mere reference in the Security Agreement to the definition of

"Pledged Property" contained in a separate document, the

Resolution, constituted a sufficient description, even though the

Resolution, and thus its description of "Pledged Property," was

not attached to the 2008 Financing Statements. The Bondholders

cite a number of cases to argue that incorporation by reference is

appropriate in this situation. They argue this is in part because

the collateral description in a financing statement is, in their

view, only "a starting point" in providing notice to an interested

party. John Deere Co. of Balt. v. William C. Pahl Constr. Co., 34

A.D.2d 85, 88 (N.Y. App. Div. 1970).

The System, joined by the Committee of Retired Employees

of the Commonwealth of Puerto Rico (the "Committee") by reference

in its brief, counters that the UCC's goals, like public notice,

require a strict rule that interested parties should not face the

burden and potential risks of further searching for a collateral

description not found within or appended to a financing statement.

We clear away some arguments which are beside the point.

- 28 - It is not helpful for the parties to use terms such as "liberal"

or "strict" construction of Article 9. And it is likely that on

some facts, incorporation by reference was permissible under the

version of Article 9 operative in the Commonwealth when the 2008

Financing Statements were filed. That principle is not really at

issue. On the facts on this record, we, like the district court,

conclude that the 2008 Financing Statements were insufficient to

perfect the security interest under P.R. Laws Ann. tit. 19,

§ 2152(1) (2008).9 There has been no literal compliance with this

rule, and this provision should be interpreted consonant with the

goals of the UCC.

Our holding of an insufficient collateral description

depends heavily on the facts, where a) the collateral is not

9 The Bondholders do not cite controlling authority on this issue. In Chase Bank of Fla., N.A. v. Muscarella, 582 So. 2d 1196 (Fla. Dist. Ct. App. 1991), part of the collateral -- the "Partnership Interest" -- was listed in the financing statement itself, see id. at 1197, and so we agree that the "[Muscarella] opinion does not stand for the proposition that it is sufficient for a financing statement to merely refer to the underlying security agreement and thereby incorporate by reference that document's collateral description." First Midwest Bank v. Reinbold (In re: I80 Equip., LLC), 591 B.R. 353, 361 (Bankr. C.D. Ill. 2018). In Int'l Home Prod., Inc. v. First Bank of P.R., Inc., 495 B.R. 152 (D.P.R. 2013), the referenced document was attached to the financing statement rather than filed or accessible only elsewhere. Id. at 160 n.8. And the citation to John Deere is inapposite here, because the reference in that case to a "starting point for investigation" does not refer to a description of collateral. 34 A.D.2d at 88.

- 29 - described, even by type(s), in the 2008 Financing Statements or

attachments; b) the 2008 Financing Statements do not tell

interested parties where to find the referenced document (the

Resolution) which contains the fuller collateral description; and

c) the Resolution is not at the UCC filing office.

First, the 2008 Financing Statements do not describe

even the type(s) of collateral, much less the items, at issue.

Cf. Elf Atochem N. Am., Inc. v. Celco, Inc., 927 P.2d 355, 363

(Ariz. Ct. App. 1996) (finding sufficient a financing statement

that described the collateral as "equipment," as further described

in two specific but unattached sales orders). They also do not

attach the document (the Resolution) referenced as describing the

collateral. Nor do those facts alone define the issue before us.

In addition, the referenced document -- the Resolution -- was held

in a different location from the UCC filing office, and the 2008

Financing Statements (including the attached Security Agreement)

contain no indication of the referenced document's location or how

to find it.

This total combination of facts undercuts several key

goals of the UCC and its filing system. These goals include fair

notice to other creditors and the public of a security interest.

See UCC § 9-502 cmt. 2;10 Wheeling & Lake Erie Ry. Co. v. Keach (In

10 "UCC Official Comments do not have the force of law, but are nonetheless the most useful of several aids to interpretation

- 30 - re: Montreal, Me. & Atl. Ry., Ltd.), 799 F.3d 1, 11 (1st Cir. 2015)

("[A] primary goal of both Article 9 and . . . perfection rules is

to ensure that other creditors have notice of [a] security

interest."); In re Softalk Publ'g Co., 856 F.2d 1328, 1330 (9th

Cir. 1988) ("The [UCC] financing statement serves to give notice

to other creditors or potential creditors that the filing creditor

might have a security interest in certain assets of the named

debtor."); In re Cushman Bakery, 526 F.2d 23, 28 (1st Cir. 1975)

(stating that "the system of notice filing is designed to . . .

apprise creditors that the secured party may have a security

interest in the collateral described in the financing

statement").11 Article 9 was also meant to facilitate the expansion

of commercial practices. See P.R. Laws Ann. tit. 19, § 401(2).12

and construction of the [UCC]." JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 57 n.6 (1st Cir. 1999) (internal quotation marks omitted). 11 Several of the cases cited by the Bondholders consider security agreements rather than financing statements. E.g. Nolden v. Plant Reclamation (In the matter of Amex-Protein Dev. Corp.), 504 F.2d 1056 (9th Cir. 1974); Greenville Riverboat, LLC v. Less, Getz & Lipman, P.L.L.C., 131 F. Supp. 2d 842 (S.D. Miss. 2000). As noted, security agreements are private contracts that do not have the same public notice purpose as financing statements. See In re Softalk Publ'g Co., 856 F.2d 1328, 1330 (9th Cir. 1988). 12 Where a referenced document is not in the UCC records and its location is not listed in the financing statement itself (nor how to find it), an interested party must do additional searching at its own expense to determine the collateral at issue. This remains true even where the extrinsic document is publicly available elsewhere: The interested party still has to search beyond where the initial financing statement has been filed, and do so without any guidance. It may not have been difficult for

- 31 - Here, as said, the 2008 Financing Statements do not

describe even the type(s) of collateral; instead, they describe

the collateral only by reference to an extrinsic document located

outside the UCC filing office, and that document's location is not

listed in the financing statement. This at best gives an

interested party notice about an interest in some undescribed

collateral, but does not adequately specify what collateral is

encumbered. That is, an interested party knowing nothing more

than this does not have "actual knowledge" and has not "received

a notice," see P.R. Laws Ann. tit. 19, § 451(25)(a)-(b) (2008), of

the collateral at issue. Requiring interested parties to contact

debtors at their own expense about encumbered collateral, with no

guarantee of a timely or accurate answer, would run counter to the

notice purpose of the UCC.13 See, e.g., In re Quality Seafoods,

interested parties to find the Resolution here, but no party disputes that additional searching would have been necessary. Interested parties doing such a search could well have justifiable concerns about the extrinsic referenced document. How, for example, would an interested party know whether a description of collateral in the extrinsic document is the latest operative version (rather than a superseded version), whether that document is complete, or whether the document found on another website or at another location is authentic rather than doctored in some way? Forcing interested parties to undertake additional work and expense merely to find a basic collateral description cuts against the goal of expansion of commercial practices. 13 In re Cushman Bakery did not determine that further inquiry by interested parties regarding the specific encumbered collateral was required under Article 9, but instead stated only that "further inquiry from the parties concerned [would] be necessary to disclose the complete state of affairs" around a

- 32 - Inc., 104 B.R. 560, 561 (Bankr. D. Mass. 1989).

The UCC filing requirements are clear. See Uniroyal,

Inc. v. Universal Tire & Auto Supply Co., 557 F.2d 22, 23 (1st

Cir. 1977). It would not have been difficult whatsoever for the

2008 Financing Statements to provide proper notice. The Resolution

could simply have been attached to these filings, as the Security

Agreement was. Instead, as they stand, the 2008 Financing

Statements would leave a reasonable creditor or interested party

with doubts as to the collateral at issue. We do not interpret

the former UCC provision in a way contrary to its purposes, above

all notice, and so the description of collateral in the 2008

Financing Statements was insufficient.

Having resolved the logically antecedent question

concerning the first UCC filings, we turn to the amendment issues.

B. Lapse of 2008 Financing Statements

The System and the Committee argue that the 2008

Financing Statements could not later satisfy the requirements for

perfection, by amendment, because the 2008 Financing Statements

had lapsed by the time the Financing Statement Amendments were

filed in 2015 and 2016. The Commonwealth's enactment of a revised

Article 9, they argue, shortened the effective time period of an

initial financing statement from ten years to five years. Compare

transaction. 526 F.2d at 28-29 (emphasis added).

- 33 - P.R. Laws Ann. tit. 19, § 2335(a) (five years) with id. § 2153(2)

(2008) (ten years). Here, the Financing Statement Amendments were

filed about seven and a half years after the 2008 Financing

Statements. Because lapsed financing statements are ineffective,

see P.R. Laws Ann. tit. 19, § 2335(c), the Committee argues that

the Amendments filed by the Bondholders could not have cured the

deficiencies as to the collateral description in the 2008 Financing

Statements. In support of their view, the System and the Committee

primarily point to a transition provision, the "Savings clause,"

in the revised Article 9, which states that "[e]xcept as otherwise

provided in this subchapter, this act applies to a transaction or

lien within its scope, even if the transaction or lien was entered

into or created before this act takes effect." Id. § 2402(a).

This argument on lapse fails for several reasons. First,

as to retroactivity, this Savings clause is not intended to apply

to the separate provision that shortened the life of financing

statements on its effective date. The Commonwealth's Law 17 of

2014, which clarified that the effective time period of financing

statements was five years, does not contain a statement concerning

retroactivity. See Law No. 17 of January 16, 2014. And as a

textual matter, we would expect that a provision intended to apply

retroactively to financing statements would directly mention

financing statements, particularly given the Commonwealth's long-

standing requirement that a law must "expressly so decree" in order

- 34 - to have retroactive effect. P.R. Laws Ann. tit. 31, § 3.

Second, the P.R. Department of State, where UCC filings

are made, considered the amendment to the time period "for the

life of an initial financing statement" and concluded that the

decrease to five years "cannot be retroactive." P.R. Dept. of

State, Circular 2014-01, Clarifications on Term for Filing

Continuing Financing Statements Based on Law 17-2014 (Jan. 24,

2014) (English trans.). That is, "for initial financ[ing]

statements filed on or before January 15, 2014, [the] term is ten

(10) years." Id. 14 Though this Circular does not have the force

of law, it is informative on this issue. Consistent with this

Circular, the Filing Office did not refuse to accept the Financing

Statement Amendments, as it would have been required to do if the

2008 Financing Statements had lapsed. See P.R. Laws Ann. tit. 19,

§ 2336(b)(3)(B)(ii).

Third, our conclusion comports with P.R. Laws Ann. tit.

31, § 3, the general provision of the Commonwealth's Civil Code,

which states that "[i]n no case shall the retroactive effect of a

law operate to the prejudice of rights acquired under previous

14At oral argument, counsel for the System suggested that the P.R. Department of State's Circular applied only to perfected interests. This is incorrect. The Circular refers to "initial financing statements" in bold text on both pages and does not limit its determination regarding retroactive effect to previously perfected interests.

- 35 - legislative action."15 Acceptance of the System's position would

run afoul of this provision. The enactment of the old Article 9

into Commonwealth law was clearly a legislative action. Applying

the five-year rule retroactively would harm the rights of creditors

holding perfected security interests through initial financing

statements that were between five and ten years old on January 16,

2014, the effective date of the modified rule. See id. tit. 19,

§ 2335(a). Nothing in the law on the effective time limit for

financing statements suggests treating financing statements

differently depending on perfection, and instead refers broadly to

"a filed financing statement" and the "date of filing," id.

(emphasis added). So, the bar on retroactivity protects all filers

in the time period at issue (which includes the Bondholders in

this case).

The 2008 Financing Statements had not lapsed when the

Financing Statement Amendments were filed about seven and a half

years later, because the ten-year rule applied to the 2008

Financing Statements.

15 As a general matter, the Supreme Court of the Commonwealth of Puerto Rico has suggested, considering this law, that it is "highly desirable that . . . [a] new rule will have prospective effect; especially, when contractual or property rights are at stake." Almodóvar v. Róman, 125 P.R. Offic. Trans. 218 (P.R. 1990).

- 36 - C. Perfection by the Financing Statement Amendments in Conjunction with the 2008 Financing Statements

We next consider whether the Financing Statement

Amendments cured defects in the initial Statements, when these

filings are read together. See, e.g., P.R. Laws Ann. tit. 19,

§ 2404(3)(B); see also Miami Valley Prod. Credit Ass'n v. Kimley,

536 N.E.2d 1182, 1186 (Ohio Ct. App. 1987) ("We are willing to

treat the two financing statements as a single financing statement

. . . ."). We do not reach the Bondholders' alternative argument

that the Financing Statement Amendments independently perfected

their security interest, since we determine that the Financing

Statement Amendments cured defects in the 2008 Financing

Statements. Similarly, we do not reach the Bondholders' argument

that Section 2323 allows the use of "other name[s]" of a debtor,

see P.R. Laws Ann. tit. 19, § 2323(b)(1), as this would require a

broader consideration of aspects of Article 9 that are beyond the

necessary scope of this case.

Article 9 contemplates situations where a financing

statement amendment "cures" an earlier financing statement by

fixing outdated or incorrect information in the financing

statement, such as after a name change by a debtor. See, e.g.,

id. § 2327(c). Under Article 9, "[a] security interest . . . (3)

becomes perfected . . . (B) when the applicable requirements for

perfection are satisfied." Id. § 2404(3)(B). As to these

- 37 - "applicable requirements," a financing statement is sufficient

only "if it: (1) Provides the name of the debtor; (2) provides the

name of the secured party or a representative of the secured party,

and (3) indicates the collateral covered by the financing

statement." Id. § 2322(a). We now consider the Bondholders'

compliance with these requirements in the 2008 Financing

Statements and the Financing Statement Amendments.

1. Name of the Secured Party and Collateral Description

The Financing Statement Amendments sufficiently provide

the name of the secured party's agent in Exhibit A: "The Bank of

New York Mellon, as Fiscal Agent," as required under Section

2322(a)(2).16 No party disputes this clear point.

As to the collateral description requirement, under the

new Article 9, a collateral description of personal property is

sufficient "whether or not it is specific, if it reasonably

identifies what is described," id. § 2218(a), but a "[s]upergeneric

description [is] not sufficient," id. § 2218(c). One of the

"[e]xamples of reasonable identification," id. § 2218(b), under

Article 9 is a "[s]pecific listing" of the collateral, id.

§ 2218(b)(1).

Here, the Financing Statement Amendments described the

collateral as "[t]he Pledged Property and all proceeds thereof and

16 The 2008 Financing Statements also properly list the Secured Party as "The Bank of New York, as fiscal agent[.]"

- 38 - all after-acquired property as described more fully in Exhibit A

attached hereto and incorporated by reference." Exhibit A, in

turn, contained a detailed definition of "Pledged Property."17

Each of the relevant capitalized terms in the definition of

"Pledged Property" -- "Revenues," "Funds," "Accounts,"

"Subaccounts," "Fiscal Agent," "Debt Service Reserve Account," and

"Resolution" -- is also defined in Exhibit A. The definition of

"Pledged Property" satisfied one of the "[e]xamples of reasonable

identification" by providing a "[s]pecific listing" of the

collateral. Id. It therefore suffices as a description of

collateral.

2. Name of the Debtor

We now turn to the key question of whether the Financing

Statement Amendments contain a sufficient "name of the debtor."

Article 9 contains different requirements for the names of

registered organizations and for the names of individuals. A

"[r]egistered organization" is defined, in part, as "an

organization organized solely under the law of a single state or

the United States by the filing of a public organic record with,

the issuance of a public organic record by, or the enactment of

legislation by the state or United States." Id. § 2212(a)(71).

The System is a registered organization because it is an

17 The full definition of "Pledged Property" is the same as in the Resolution, and is reproduced in note 3, supra.

- 39 - organization formed and organized by the Commonwealth's enactment

of legislation: the 1951 Enabling Act. When a debtor is a

registered organization,

[a] financing statement sufficiently provides the name of the debtor . . . only if the financing statement provides the name that is stated to be the registered organization's name on the public organic record most recently filed with or issued or enacted by the registered organization's jurisdiction of organization which purports to state, amend, or restate the registered organization's name.

Id. tit. 19, § 2323(a)(1). Though a financing statement that

"provides only the debtor's trade name does not sufficiently

provide the name of the debtor," id. § 2323(c), an otherwise

sufficient financing statement, containing a correct name of the

debtor, is "not rendered ineffective by the absence of . . . [a]

trade name or other name of the debtor," id. § 2323(b).18

18 Article 9 also provides a safe harbor provision for minor errors or omissions: "A financing statement substantially satisfying the requirements of this subchapter is effective, even if it has minor errors or omissions, unless the errors or omissions make the financing statement seriously misleading." P.R. Laws Ann. tit. 19, § 2326(a). For a name,

if a search of the records of the filing office under the debtor's correct name, using the filing office's standard search logic, if any, would disclose a financing statement that fails sufficiently to provide the name of the debtor in accordance with § 2323 (a) of this title, the name provided does not make the financing statement seriously misleading.

Id. § 2326(c).

- 40 - Like the 2008 Financing Statements, Exhibit A to the

Financing Statement Amendments stated the name of the debtor as

"Employees Retirement System of the Government of the Commonwealth

of Puerto Rico." The 2008 Financing Statements also stated the

"[e]ntity name" of the debtor as "Employees Retirement System of

the Government of the Commonwealth of Puerto Rico." The System

and the Committee argue that, as of February 28, 2018, this became

the incorrect name because, in their view, the English translation

of the 2013 amendment to the Enabling Act changed the System's

English name. Id. tit. 3, § 761. The English translation of that

Act states that "[a] retirement and benefit system to be designated

as the 'Retirement System for Employees of the Government of the

Commonwealth of Puerto Rico' . . . is hereby created." Law No. 3

of April 4, 2013, 2013 P.R. Laws 64. In the System's view, the

2013 amendment to the Enabling Act is the relevant "public organic

record most recently filed with or issued or enacted by the

registered organization's jurisdiction of organization." P.R.

Laws Ann. tit. 19, § 2323(a)(1). The System argues that Section

1-101, codified at P.R. Laws Ann. tit. 3, § 761, alone is the

section which "state[s]" the name of the System under Section

2323(a)(1), and so concludes that the RSE name is the name for

Article 9 purposes. That is, the System argues that it is

irrelevant that other sections of the Act use "Employees Retirement

System," see, e.g., id. § 763(36), because only Section 1-101 of

- 41 - the translation "purports to state, amend, or restate the

registered organization's name," id. tit. 19, § 2323(a)(1). Even

if this were a translation error, the System argues, "that

erroneous translation would nevertheless constitute [the System's]

name for Article 9 purposes." The System argues that any UCC

filing (whether a financing statement or financing statement

amendment) under "Employees Retirement System of the Government of

the Commonwealth of Puerto Rico" does not state the correct name.

On this view, because a search under the correct name --

Commonwealth of Puerto Rico" -- would not find such a UCC filing,

use of the ERS name is seriously misleading. P.R. Laws Ann. tit.

19, § 2326(c).

The Bondholders make numerous arguments in opposition

regarding the sufficiency of the name used, some statutory and

some focused on the System's own conduct. We do not detail those

arguments further, but deal with them in our analysis.

We resolve the merits of this matter on the record, which

is adequate. Both the 2008 Financing Statements and the Financing

Statement Amendments were filed in English. And so we look to the

2014 English translation of the Enabling Act to determine whether

the Financing Statement Amendments comply with the UCC's reference

to the "public organic record most recently . . . enacted by the

[System's] jurisdiction of organization which purports to state,

- 42 - amend, or restate the [System's] name." P.R. Laws Ann. tit. 19,

§ 2323(a)(1). The "to be designated as" language codified at

Section 761 does not mean that no other portion of the statute

"state[s]" the name of the System for UCC purposes. The System

misconstrues the relevant UCC provision here, by suggesting that

only the first section of the Enabling Act "purports to state,

amend, or restate the registered organization's name," id. tit.

19, § 2323(a)(1), because that section uses the following

language: "A retirement and benefit system to be designated as the

'Retirement System for Employees of the Government of the

Commonwealth of Puerto Rico,' . . . is hereby created." Id. tit.

3, § 761. The requirement is that a filer "provide the name that

is stated" in the "public organic record . . . which purports to

state, amend, or restate the registered organization's name." Id.

(emphasis added). The latter clause, starting with "which

purports," plainly modifies "public organic record." So, it does

not follow that only one of many clauses in the statute must be

all that can be considered when determining what "name . . . is

stated" in the "public organic record."19 Instead, this UCC

19 The System's argument by analogy to the UCC's provision, P.R. Laws Ann. tit. 19, § 2323(a)(4), regarding an individual's name on a driver's license, is unpersuasive. The System argues that since an incorrect name on a driver's license must be used as the party's name in a sufficient UCC filing, if the filing is made in the same state as the driver's license was issued, the RSE name must be used here (whether or not it is a correct name). This argument by analogy is necessarily premised on the view that the

- 43 - provision directs focus to the entire "public organic record which

purports to state, amend, or restate the registered organization's

name." Id. The fact that Section 1-101 of the English translation

of the amended Enabling Act uses "Retirement System for Employees

of the Government of the Commonwealth of Puerto Rico" does not end

the inquiry.

The official English translation, on its face,

repeatedly translates the exact same Spanish name in two different

ways.20 Both "Retirement System for Employees" and "Employees

Retirement System," are used, seemingly interchangeably,

throughout the translated Act as codified. No provision of the

Act states, nor even suggests, that the ERS name is used as a trade

2013 amended Act states only the RSE name, whether or not it is a translation error. If, as we conclude, the amended Act states the ERS name as a name for the System, a searcher can still rely only on official records and there is no issue about a searcher having to use an "incorrect" name. More generally, the requirement for an individual with a driver's license issued in the state is not relevant here, where we consider a registered organization that is created and designated by statute. 20 The Spanish language at issue did not change in the 2013 amendment to the Enabling Act. The language translated as "to be designated as the 'Retirement System for Employees,'" is "que se denominará 'Sistema de Retiro de Los Empleados." Compare Law No. 3 of April 4, 2013, 2013 P.R. Laws 39 with id. (Spanish). This is the same Spanish language used after the last amendment to the Enabling Act in 2004. P.R. Leyes Ann. tit. 3, § 761 (2005). And indeed, the portion of the Spanish corresponding to the first part of the name of the System -- "Sistema de Retiro de Los Empleados" -- was the same in the original Enabling Act of 1951, and was translated there as "Employees Retirement System." Compare Law No. 447 of May 15, 1951, 1951 P.R. Laws 1298 with id. at 1299.

- 44 - name or nickname rather than an official, legal name.21 We do not

agree with the System that one English name (the RSE name) is

official and the other (the ERS name) is merely a trade name, which

would be insufficient.

The System's argument that the "to be designated" clause

in Section 1-101 alone must control fails for a number of reasons.

The numerous clauses using the ERS name are hardly trivial. It is

true that "Retirement System for Employees" is used three times in

the translated Act, as codified. Id. §§ 761, 763(1), 779.22 But

"Employees Retirement System" is used far more often: by our count,

more than thirty-five times in the Act as codified. Perhaps most

importantly, "Employees Retirement System" is used in the primary

definition of "[s]ystem." Id. § 763(36) ("System [s]hall mean the

Employees Retirement System of the Government of the Commonwealth

of Puerto Rico."). Other uses of the ERS name include in the

heading of Section 1-101, id. § 761, as well as the headings of

21 We do not need to decide whether a translation error occurred in this instance. We do note that in the relevant portion of the Spanish version of the Act, the Spanish preposition most commonly translated as "for" -- para -- is not used. See University of Cambridge, Spanish-English Dictionary, http://dictionary.cambridge.org/dictionary/spanish-english, "para." 22 It is not clear that the use in Section 779 refers to the same System, though we assume it does. This provision in English describes the "Retirement System of the Employees of the Government and its Instrumentalities," P.R. Laws Ann. tit 3, § 779, rather than "Retirement System for Employees of the Government of the Commonwealth of Puerto Rico," id. § 761.

- 45 - many other sections, see id. §§ 761a, 762, 763, 764, 765, 765a,

766, 766a, 766b, 766c, 766d, 768, 768a, 769, 769a, 770, 770a, 771,

772, 773, 774, 775, 776, 777, 778, 779, 779a, 779b, 779c, 781a,

782, 783, 784, 785, 786, 786a, 786b, 787, 788.

The System and the Committee have offered no explanation

as to why, when both terms are used, the ERS name should be

disregarded. It is difficult to discern why "Retirement System

for Employees" is used instead of "Employees Retirement System" in

the particular places where the RSE name is used. Nothing about

the context suggests that one or the other should be used, and the

underlying Spanish is the same.

We think a reasonable creditor would be familiar with

the Commonwealth law that, in a case of a discrepancy between the

English and Spanish, when the legislation originated in Spanish

"the Spanish text shall be preferred to the English." P.R. Laws

Ann. tit. 31, § 13; see Republic Sec. Corp. v. P.R. Aqueduct &

Sewer Auth., 674 F.2d 952, 956 (1st Cir. 1982) ("[I]n cases of

discrepancy 'the Spanish text shall be preferred.'"). Further, we

see no evidence that the legislature of the Commonwealth intended

to change the English name of the System to the RSE name and

abandon the ERS name. We would expect to see a clear statement

expressing a desire to change the translation, and there is no

such statement. This expectation is only reinforced by Section

13, described above.

- 46 - The legislature provided a Statement of Motives to the

2013 amendment, which identified, for example, the fiscal crisis

in Puerto Rico, the causes of the crisis, and the need to act

promptly. Law No. 3 of April 4, 2013, 2013 P.R. Laws 39-64. And

the legislature then explained "[e]ach one of the amendments," id.

at 58, such as the "[i]ncrease in the employee contribution

[rate]," id. at 59. There is no explanation in this section that

the 2013 amendment was meant to change the name of the System.

Earlier name changes, including in 2004, demonstrate generally

that the legislature understands how to change the System's name

when it wants to do so.

It is also significant that the RSE name referenced in

the "to be designated" clause differs from prior longstanding

official uses. From 1951 through 2012, translated versions of the

Enabling Act used only "Employees Retirement System" in the first

section. See, e.g., Law No. 447 of May 15, 1951, 1951 P.R. Laws

1298; P.R. Laws Ann. tit. 3, § 761 (1988); id. (2006), id. (2011).

It is only the translation of the 2013 amendment which breaks this

consistent pattern. Of course, a long-standing name of an

organization or agency that is named by statute can be changed by

statute. Here, though, the legislature did change the System's

name several times, including changing the name of the System in

2004 by removing "and its Instrumentalities" ("y sus

Instrumentalidades") from the end of the System's name and by

- 47 - replacing "Government of Puerto Rico" with "Government of the

Commonwealth of Puerto Rico" ("Gobierno del Estado Libre Asociado

de Puerto Rico"). Law No. 296 of September 15, 2004, § 1-101;

P.R. Laws Ann. tit. 3, § 761 (2006). But, with each of these

changes, the "Employees Retirement System" part of the name

remained the same. Our conclusion that there was no legislative

intent to change the System's name is also bolstered by post-2014

legislative action. Years after the 2014 translation of the

amended Enabling Act, the official translation of the Puerto Rico

Financial Emergency and Fiscal Responsibility Act of 2017 referred

to the System in part as "the Employees Retirement System." P.R.

Laws Ann. tit. 3, § 9433(r).

Further, the ERS name is the name consistently used by

the System itself, including in court filings, before and after

the translation of the amended Act in 2014. There are many

examples of this; we list only a few. In its complaint in this

case, the System referred to itself as "the Employees Retirement

System of the Government of the Commonwealth of Puerto Rico" or

"ERS." The System referred to itself in the same way in its Answer

to Defendant's Counterclaims. The System did not mention

"Retirement System for Employees" or "RSE" in either document.

Independently, in its Title III Petition form, dated May

21, 2017, the ERS name was used under "Debtor's name." In the box

on the Title III form asking for "[a]ll other names Debtor used in

- 48 - the last five years [-] Include any assumed names, trade names,

and doing business as names," only a Spanish name was listed,

"Adminstracion de los Sistemas de Retiro de los Empleados del

Gobierna y la Judicatura," with no mention of "Retirement System

for Employees." Further, the System made no statement that

"Employees Retirement System" was being used as a trade name.

Again, these are only a few of the many times that the System held

itself out as the "Employees Retirement System" around the time of

and after the translation of the amended Enabling Act was in

effect. The district court determined, and the System now argues,

that the System used the ERS name simply as a trade name after

2014. See In re: Fin. Oversight & Mgmt. Bd. for P.R., 590 B.R. at

592. We disagree.

Finally, there is no doubt that the ERS name was the

official and only name of the System for over sixty years. So,

any putative creditors would have had to search under that name to

find prior liens even if the System's name did change in 2014.

See P.R. Laws Ann. tit. 19, § 2327(c) (providing that a secured

party owning a lien on the debtor's property acquired prior to a

name change is not required to file a new financing statement).

This observation adds further support to the central proposition

that any putative creditor who read the 2014 translation of the

Enabling Act would conclude that, given the inconsistent use of

both the ERS and RSE names, it should at the very least search

- 49 - under the long-standing ERS name.

All of these reasons lead us to conclude that "Employees

Retirement System of the Government of the Commonwealth of Puerto

Rico" remained a valid name for UCC purposes when the Financing

Statement Amendments were filed.23 In our view, a searcher, whether

another creditor or merely an interested party, would conclude

that a search under the ERS name was required. Similarly, a

reasonable filer would have concluded that the ERS name was a

correct name for the debtor for UCC purposes.

Because the Financing Statement Amendments used

"Employees Retirement System of the Government of the Commonwealth

of Puerto Rico," they contained an appropriate name of the debtor

under the Commonwealth's Article 9. See P.R. Laws Ann. tit. 19,

§§ 2322(a), 2323(a)(1), 2404(3)(B). Taken together with the 2008

Financing Statements, the Financing Statement Amendments met the

requirements for perfection as of December 17, 2015. See id.

§ 2322(a).

23 Even were we to accept that "[t]he majority of cases decided under . . . Article 9 are unforgiving of even minimal errors [for the name of the debtor]," In re John's Bean Farm of Homestead, Inc., 378 B.R. 385, 391 (Bankr. S.D. Fla. 2007), a filing under the ERS name is not such an error. The situation here is clearly unlike, for example, a filer misspelling the name of a tractor seller as "Roger" rather than "Rodger." See Pankratz Implement Co. v. Citizens Nat. Bank, 130 P.3d 57, 59 (Kan. 2006).

- 50 - D. Avoidance under PROMESA

Because we determine that the Bondholders satisfied

Article 9's perfection requirements before the passage of PROMESA

on June 30, 2016, we do not consider whether PROMESA would allow

retroactive avoidance of unperfected liens.24 The debtors do not

argue that the strong-arm provision of the Bankruptcy Code,

incorporated by reference in PROMESA, would allow them to avoid

the Bondholders' interest if the interest is perfected.

And as a "basic tenet of the law of secured

transactions," a "perfected security interest prevails over a

subsequent lien creditor." Ledford v. Easy Living Furniture, 52

B.R. 706, 710 (Bankr. S.D. Ohio 1985); accord Gen. Elec. Credit

Corp. v. Nardulli & Sons, Inc., 836 F.2d 184, 189 (3d Cir. 1988)

(holding that because the parties filed correctly and perfected

their security interest, "their rights as lienholders are superior

to those of the trustee as a hypothetical lienholder under 11

U.S.C. § 544"). Commonwealth law recognizes this rule of priority

by implication, in stating that a judicial creditor's lien is

24Similarly, we need not consider the System's argument that the Bondholders' security interest was always inferior to subsequent perfected security interests and judicial liens under the UCC, see P.R. Laws Ann. tit. 19, §§ 2219(a)(1), 2212(52), 2267(a)(2)(A), because this argument is necessarily premised on the Bondholders having only an unperfected security interest. The System does not argue that the UCC would grant priority over a previously perfected lien, and the statutory text is clear on this issue. Id. § 2267(a)(2)(A).

- 51 - superior to a prior unperfected security interest. See P.R. Laws

Ann. tit. 19, § 2267(a)(2)(A). "Where a creditor has an

unperfected lien on a debtor's property, the Bankruptcy Code

empowers a trustee to avoid and preserve the lien for the benefit

of the estate." DiGiacomo v. Traverse (In re Traverse), 753 F.3d

19, 26 (1st Cir. 2014) (emphasis added).

E. The Bondholders' Counterclaims

The Bondholders also appeal the dismissal of their

second and third counterclaims, both requests for declaratory

judgment. Counterclaim Two sought a declaration stating that the

"Bondholders hold valid, enforceable, attached, perfected, first

priority liens on and security interest in the Pledged Property

whether ERS became entitled to collect such property before or

after the commencement of ERS's Title III case." Counterclaim

Three sought a declaration stating that "because the employer

contributions constitute 'special revenues,' [Bondholders']

security interests in and liens on employer contributions received

by the [System] after the Petition Date remain enforceable pursuant

to 11 U.S.C. § 928(a)." The Bondholders argue that the district

court did not adequately address arguments for these

counterclaims.

As to Counterclaim Two, the Bondholders acknowledged in

the district court that the "[11 U.S.C.] section 552 issues need

not be reached in light of the Summary Judgment Decision," and did

- 52 - not provide "any reason that the remaining aspects of Count Two

should be resolved differently from the Claims resolved by the

Summary Judgment Decision." As to Counterclaim Three, the

Bondholders stipulated that "in light of the Summary Judgement

decision [the Bondholders] are unable to identify any need for the

[district court] to reach the alternative arguments."

Because we find the 2008 Financing Statements effective

as amended, we remand to the district court for further

consideration of the dismissals of these counterclaims in light of

this opinion.

F. Violation of the January 2017 Stipulation

Finally, the Bondholders argue that ERS violated the

January 2017 Stipulation between the parties, and the district

court erred in determining that no violation occurred (or that it

was beyond the scope of the proceeding). Specifically, they assert

that the System violated that Stipulation because it requires that,

"[t]o the extent that ERS receives any Commonwealth central

government Employers' contributions, unless otherwise agreed in

writing by the undersigned parties, such contributions shall be

retained in the Segregated Account pending further order of the

Court." The System points out that a Joint Stipulation between

the parties in this case limited claims or counterclaims on

employer contributions only to those received during May 2017.

Even assuming the Bondholders have not waived this

- 53 - argument,25 it fails. The Joint Stipulation shows that the parties

agreed that the scope of the adversary proceedings at the district

court would include "ERS's rights with respect to employer

contributions received during the month of May 2017," and beyond

some other stipulated claims and counterclaims, "no other claims

may be made by either side" (emphasis added). So only the

contributions during the month of May 2017 are properly at issue

here. But as the district court correctly noted, In re: Fin.

Oversight & Mgmt. Bd. for P.R., 590 B.R. at 599, the Bondholders

conceded in their Answer and Counterclaims below that "ERS was

obligated to place Employers' Contributions into the Segregated

Account only for the duration of the [PROMESA] Section 405 Stay,"

and the Section 405 stay expired as of May 1, 2017. The Bondholders

have not explained how their argument concerning the alleged

violation of the January 2017 Stipulation survives these

admissions, taking into account the stipulated scope of the

adversary proceedings. The district court correctly dismissed the

Bondholders' claim regarding an alleged violation of the January

25Neither opening brief from the Bondholders makes a full argument concerning the alleged violation of the January 2017 Stipulation. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.").

- 54 - III.

We affirm the district court's holding that the 2008

Financing Statements did not perfect the Bondholders' security

interest in the "Pledged Property." We determine that the

Bondholders met the requirements for perfection beginning on

December 17, 2015, and so reverse the district court. PROMESA's

incorporation of the Bankruptcy code does not allow for the

avoidance of perfected liens, and so we vacate the district court's

holding that the Bondholders' security interest can be avoided

under PROMESA. Concerning the district court's dismissal of the

Bondholders' second and third counterclaims with prejudice, we

vacate and remand to the district court for further consideration

in light of this opinion. We affirm the district court's dismissal

of the Bondholders' claim regarding the January 2017 Stipulation.

No costs are awarded.

- 55 -