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In re Acevedo

United States District Court, D. Massachusetts

September 15, 2017

In re ACEVEDO

          MEMORANDUM OF DECISION AND ORDER

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Vicente Pérez Acevedo appeals an order of the United States Bankruptcy Court for the District of Massachusetts (Docket # 10). In that order, the bankruptcy court vacated default judgments against appellees, Pablo Meléndez Bonilla, Nydia Maria Negrón Contreras and their conjugal partnership (collectively “Bonilla-Contreras”), and their attorney, Leniel Collazo Nazario, and further dismissed the adversary proceeding for lack of jurisdiction.

         I. Background

         The history of this case is lengthy and complicated. I note only the facts necessary to this decision, which are drawn from the bankruptcy court filings and the designated record on appeal.

         A. Purchase of the Property in Puerto Rico

         In May 2006, Bonilla-Contreras obtained a mortgage and purchased a vacant property (the “Property”) in Puerto Rico. Bonilla-Contreras and Acevedo then formed an entity, Corporacion Marcaribe Investment (“Marcaribe”), to acquire the Property, which was transferred to Marcaribe in March 2007. Marcaribe was jointly owned by Bonilla-Contreras and Acevedo. The parties “allegedly agreed to share equally the responsibility to pay the Mortgage Loan until May 26, 2011.” Docket # 2, at 27.

         B. Puerto Rico Superior Court Proceedings

         Appellees allege that Acevedo fell behind on his share of the mortgage payments, and on April 22, 2010, Bonilla-Contreras, through their attorney, Nazario, filed suit against Acevedo and Marcaribe in Puerto Rico superior court to (1) dissolve Marcaribe; (2) order the appraisal and sale of the Property; and (3) recover moneys from Acevedo in alleged damages that reflect his share of expenses related to the purchase of the Property. During the pendency of the state court proceedings, Bonilla-Contreras allegedly applied for a loan modification and posed as the sole owner of the Property. The loan modification extended the repayment of the mortgage from July 1, 2011 to June 1, 2041.

         On April 30, 2012, the superior court judge entered a partial judgment in favor of Bonilla-Contreras and ordered the dissolution of Marcaribe, but refrained from resolving the issues of liquidation and distribution of the assets, and Acevedo's alleged debt to Bonilla-Contreras.

         On October 11, 2012, Acevedo filed a motion in the superior court to inform it of his filing for bankruptcy and requested that the superior court “suspend[] solely the collection of money.” Docket # 5-7, at 17. In response, on October 23, 2012, Bonilla-Contreras filed a Motion Requesting Extension to “study the current situation” because “the bankruptcy request is under Chapter 13 and it is exclusively of a personal nature” but “it is [their] understanding that the collection of money [in the state court proceedings] applies strictly to Marcaribe Corporation, Inc., within its liquidation, ” Docket # 5-7, at 20-21. On November 9, 2012, Bonilla-Contreras, through their counsel, Nazario, filed a motion for partial judgment without prejudice seeking to dismiss Acevedo from the state court proceedings in light of his filing the Chapter 13 bankruptcy petition. On December 3, 2012, the Puerto Rico superior court dismissed Acevedo in his individual capacity, but not Marcaribe, from the state court proceedings.

         C. Chapter 13 Bankruptcy Proceeding in District of Massachusetts

         On October 10, 2012, nearly six months after the superior court ordered the dissolution of Marcaribe but two months prior to Acevedo's dismissal from the state court proceedings, Acevedo filed a Chapter 13 bankruptcy proceeding in the District of Massachusetts.[1] He identified two creditors who held secured claims and two creditors who held unsecured non-priority claims, resulting in a Chapter 13 plan cost of $7, 368. See Docket # 5-6, at 62. The Chapter 13 bankruptcy plan was confirmed on October 11, 2013.

         D. Adversary Proceeding in District of Massachusetts Bankruptcy Court

         On March 3, 2013, while the bankruptcy case was still pending, Acevedo filed an adversary proceeding in the bankruptcy court against appellees.[2] The complaint alleges, among other things, that: (1) appellees willfully violated the automatic stay by continuing the state court litigation to dissolve and liquidate Marcaribe; (2) Bonilla and Contreras fraudulently transferred real property; and (3) Bonilla and Contreras violated 11 U.S.C. § 542 (turnover of property to the estate).[3] Acevedo alleged that the state court proceedings “aim to sell property-the Land-of the estate and to diminish such property of the estate by applying [Acevedo's] interest to a mortgage debt . . . fraudulently obtained through the ultra vires action of a shareholder, of a now dissolved ...


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