IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of

THE COMMONWEALTH OF PUERTO RICO, et 

al.,

Debtors. 1

In re:

THE FINANCIAL OVERSIGHT AND 

MANAGEMENT BOARD FOR PUERTO RICO,

as representative of

THE EMPLOYMENT RETIREMENT SYSTEM 

OF THE COMMONWEALTH OF PUERTO RICO 

(“ERS”),

Debtor.

PROMESA

Title III

No. 17 BK 03283-LTS

(Jointly Administered)

PROMESA

Title III

No. 17 BK 03566-LTS

MOTION FOR LEAVE TO FILE MEMORANDUM OF LAW IN SUPPORT OF ERS INDIVIDUAL 

PLAINTIFF’S OPPOSITION TO UBS’ MOTION TO ENFORCE THE PLAN OF ADJUSTMENT 

1 The Debtors in these Title III cases, along with each Debtor’s respective Title III case number and the last four (4) digits of each Debtor’s 

federal tax identification number, as applicable, are the (i) Commonwealth of Puerto Rico (Bankruptcy Case No. 17-BK-3283 (LTS)) (Last 

Four Digits of Federal Tax ID: 3481); (ii) Employees Retirement System of the Government of the Commonwealth of Puerto Rico (“ERS”) 

(Bankruptcy Case No. 17-BK-3566 (LTS)) (Last Four Digits of Federal Tax ID: 9686); (iii) Puerto Rico Highways and Transportation 

Authority (Bankruptcy Case No. 17-BK-3567 (LTS)) (Last Four Digits of Federal Tax ID: 3808); (iv) Puerto Rico Sales Tax Financing 

Corporation (Bankruptcy Case No. 17-BK-3284 (LTS)) (Last Four Digits of Federal Tax ID: 8474); and (v) Puerto Rico Electric Power 

Authority (Bankruptcy Case No. 17-BK-4780 (LTS)) (Last Four Digits of Federal Tax ID: 3747) (Title III case numbers are listed as 

bankruptcy case numbers due to software limitations). 

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TO THE HONORABLE COURT:

Individual Plaintiffs, the Estate of Pedro José Nazario Serrano; the Estate of Juanita 

Sosa Pérez2; Joel Rivera Morales; María de Lourdes Gómez Pérez; Héctor Cruz Villanueva; 

Lourdes Rodríguez and Luis M. Jordán Rivera, all of them Retirees/Beneficiaries of the ERS 

and Plaintiffs in a claim for damages described below that is currently pending in the 

Commonwealth of Puerto Rico Court of First Instance, San Juan Part (the “Commonwealth 

Court”), without submitting to the jurisdiction of this Court, very respectfully STATE and 

PRAY as follows:

1. During the Omnibus Hearing held on September 28, 2022, this Honorable 

Court considered UBS Financial, Inc.’s Motion to Enforce the Plan of Adjustment (Docket No. 

21651), as well as the ERS Individual Plaintiff’s Opposition (Docket No. 22175). 

2. Despite Article 517 of the Act No. 53-2021 clear provision that the 

“Adjustment Plan transactions cannot be used to mitigate causes of action under Act 

No. 3-2013”, UBS contended that this Honorable Court should enjoin the ERS Individual 

Plaintiffs from prosecuting the Commonwealth Action, which started in 2011, because of the 

Plan of Adjustment recently approved. 

3. ERS Individual Plaintiffs contended that the Plan of Adjustment could not be 

used as ground to dismiss a case from the Commonwealth Court, that was filed prior to the 

approval of the plan, and that was not included in the plan. The ERS Individual Plaintiffs 

added that their action before the Commonwealth Court was pursuant to Act No. 3-2013, 

which recognized them a direct cause of action (“pro se”) against UBS.3 Since the joinder of 

2 Pedro José Nazario and Juanita Sosa Pérez are deceased. Once their respective declaration of heirs is available, 

we will make the substitution. 

3 Section 40 of Act No. 3-2013 provides that: “Cause for action is hereby recognized to the participants and 

pensioners of the Employees Retirement System of the Government of Puerto Rico and the Judiciary to sue, pro se, 

nongovernment investment advisers and underwriters in any transaction in which pension obligation bonds have 

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the ERS as Plaintiff in the Commonwealth Action in 2017, the Commonwealth Action has not 

been derivative suit on behalf of the ERS, but a direct, personal claim from the ERS retirees 

against UBS.

4. After hearing the arguments submitted by both, UBS and the ERS Individual 

Plaintiffs, this Honorable Court asserted that the Commonwealth Action is derivative in 

nature, because UBS’ contractual duty was only toward the ERS, and not towards the retirees 

themselves. 

5. In that conjuncture, ERS Individual Plaintiffs explained that the applicable 

Puerto Rico tort statute, Article 1802 of the Civil Code of Puerto Rico of 1930, as amended, 

imposes liability on any person or entity who by an act or omission causes damage to 

another through fault or negligence. See P.R. Laws Ann. tit. 31, § 5141; Valle v. American Int'l 

Ins. Co., 8 P.R. Offic. Trans. 735, 738, 108 P.R. Dec. 692 (1979). In light of Article 1802, supra, 

the general duty to cause no harm is applicable against UBS, even if no contract was executed 

between UBS and the retirees.

6. When questioning the ERS Individual Plaintiffs during the Hearing, this 

Honorable Court implied that UBS only had a legal duty towards the ERS; not with respect to 

the ERS Individual Plaintiffs. But the required standard of care imposed by Article 1802, 

supra, is a general one, consisting of fault and/or negligence. ERS Individual Plaintiffs find it 

is necessary to submit to this Honorable Court a memorandum of law in support of their 

argument that a personal, direct tort action is exercisable by the retirees themselves against 

UBS, independently from the tort action the ERS is exercising on its own.

been issued by the Employees Retirement System of the Government of Puerto Rico and the Judiciary, for damages 

caused to the System or its beneficiaries.” (Emphasis added).

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THEREFORE, the ERS Individual Plaintiffs respectfully request this Honorable Court 

to: GRANT this motion and consequently authorize the ERS Individual Plaintiffs to file the 

attached memorandum of law in support of their Opposition, at Docket No. 22175, with 

respect to UBS Financial Services Inc.’s Motion to Enforce the Plan of Adjustment and for 

Related Injunctive Relief, at Docket No. 21651.

RESPECTFULLY SUBMITTED.

WE HEREBY CERTIFY: That on this same date a true and exact copy of this motion was filed 

with the Clerk of Court using CM/ECF system, which will notify a copy to counsel of record. 

In San Juan, Puerto Rico, this 4th day of October 2022.

VICENTE & CUEBAS PUJOL LAW OFFICES, PSC

P.O. Box 11609 P.O. Box 363042

San Juan, PR 00910-1609 San Juan, PR 00936-3042

Phone No. (787) 751-8000 Phone No. (787) 724-0900

Fax No. (787) 756-5250 Fax No. (787) 724-1196

/s/Harold D. Vicente /s/Francisco Pujol Meneses 

Harold D. Vicente, Esq. Francisco Pujol Meneses, Esq.

USDC-PR Bar No. 117711 USDC-PR Bar No. 212706

hvicente@vclawpr.com fpujol@pujollawpr.com

/s/Harold D. Vicente-Colón BUFETE ANDRÉU & SAGARDÍA

Harold D. Vicente-Colón, Esq. 261 Avenida Domenech

USDC-PR Bar No. 211805 San Juan, Puerto Rico 009718

hdvc@vclawpr.com Phone No. (787) 754-1777/763-8044

Fax No. (787) 763-8045

 

 /s/José A. Andréu Fuentes

 José A. Andréu Fuentes, Esq. 

USDC-PR Bar No. 204409

 jaf@andreu-sagardia.com

Counsel for Individual Plaintiffs, Beneficiaries of the Retirement System

of the Commonwealth of Puerto Rico

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