UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

In re:

THE FINANCIAL OVERSIGHT BOARD 

AND MANAGEMENT BOARD FOR 

PUERTO RICO,

As representative of

THE COMMONWEALTH OF PUERTO 

RICO, THE EMPLOYEES 

RETIREMENT SYSTEM OF THE 

GOVERNMENT OF THE 

COMMONWEALTH OF PUERTO RICO, 

AND THE PUERTO RICO PUBLIC 

BUILDINGS AUTHORITY

Debtors1

PROMESA

Title III

No. 17 BK 3283-LTS

(Jointly Administered)

REPLY TO THE ERS’ OBJECTION TO MOTION FOR ALLOWANCE OF

ADMINISTRATIVE EXPENSE PROOF OF CLAIM FILED ON FEBRUARY 4, 2023

DUE TO LACK OF NOTICE

TO THE HONORABLE COURT:

COMES NOW, Acisclo Fossas-Marxuach (“Fossas-Marxuach”), through the undersigned 

counsel, and respectfully STATES, ALLEGES, and PRAYS:

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) Puerto Rico Sales Tax Financing 

Corporation (“COFINA”) (Bankruptcy Case No. 17-BK-3284-LTS) (Last Four Digits of Federal Tax ID: 8474); (iii) Puerto 

Rico Highways and Transportation Authority (“HTA”) (Bankruptcy Case No. 17-BK-3567-LTS) (Last Four Digits of 

Federal Tax ID: 3808); (iv) 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); (v) Puerto Rico Electric 

Power Authority (“PREPA”) (Bankruptcy Case No. 17- BK-4780-LTS) (Last Four Digits of Federal Tax ID: 3747); and (vi) 

Puerto Rico Public Buildings Authority (“PBA”) (Bankruptcy Case No. 19-BK-5523-LTS) (Last Four Digits of Federal Tax 

ID: 3801) (Title III case numbers are listed as Bankruptcy Case numbers due to software limitations).

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PRELIMINARY STATEMENT

1. On May 10, 2023, Fossas-Marxuach filed a Motion for Allowance of Administrative 

Expenses Proof of Claim filed on February 4, 2023 Due to Lack of Notice (“the Motion”). See

ECF No. 24183. Fossas-Marxuach asked this Honorable Court to allow his Administrative 

Expenses Proof of Claim filed on February 4, 2023, because he never received any notice of any 

details, deadlines and/or proceedings of the Commonwealth of Puerto Rico’s and/or the ERS’ Title 

III cases, despite having an ongoing litigation in federal court against the Retirement Board of the 

Government of Puerto Rico and the Judiciary (“the Retirement Board”).2 See Acisclo FossasMarxuach v. Retirement Board of the Government of Puerto Rico and the Judiciary, USDC-PR 

Case No. 21-01513 (CVR). Alternatively, Fossas-Marxuach requested this Honorable Court to 

deem his judicial complaint, filed on October 21, 2021 in this same U.S. District Court against the 

Retirement Board as a timely filed informal Administrative Expenses Proof of Claim. 

2. On May 24, 2023, the Employees Retirement System (“ERS”) filed an Objection

to Fossas-Marxuach’s Motion. See ECF No. 24307. The ERS argued that Fossas-Marxuach’s 

motion should be denied “because the Debtor provided sufficient and appropriate notice of the 

June 13, 2022 administrative claim bar date by first class mail and email service, and, to the extent 

the January 18, 2023 administrative claim bar date applies, through various publications pursuant 

to the Administrative Claim Bar Date Extension Order [ ], which publication notice this Court has 

previously determined provides adequate notice of the deadline to file proofs of claims.” See ECF 

24307 at 6. The ERS also argued that Fossas-Marxuach’s request to deem his judicial complaint 

against the Retirement Board, filed on October 21, 2021, as a timely filed informal Administrative 

2 Pursuant to Puerto Rico Law 106 of August 23, 2017 (“Law 106-2017”), which reformed the Employees Retirement

System of the Government of the Commonwealth of Puerto Rico (“ERS”), the Retirement Board replaced the Board

of Trustees as the highest governing body of the ERS. See Laws of P.R. Ann., Tit. 3, §9562.

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Expenses Proof of Claim should be denied because, although the First Circuit has recognized the 

validity of the informal proof of claim doctrine, “the application of this equitable doctrine in 

connection with the unprecedented Title III cases of the Commonwealth and related 

instrumentalities would hinder the effective restructuring efforts contemplated by PROMESA and 

is not supported given Movant received actual notice of the Original Administrative Claim Bar 

Date.” See ECF No. 24307 at 10.

3. As discussed below, the ERS arguments are incorrect, misleading and have no 

merit. As such, its objection should be denied and Fossas-Marxuach’s motion should be granted.

DISCUSSION

A. No adequate notice was given to Fossas-Marxuach

4. The ERS does not dispute the facts that during the litigation between FossasMarxuach and the Retirement Board, the latter never raised any argument regarding any applicable 

stay, never filed any notice informing of any stay, never informed Fossas-Marxuach or his counsel 

of anything Fossas-Marxuach needed to do to preserve his claim against the Retirement Board in 

light of the Commonwealth of Puerto Rico’s and/or the ERS’ Title III proceedings, and did not 

even mention PROMESA in any of its filings. The ERS also does not dispute that it knew FossasMarxuach’s contact information, not only because Fossas-Marxuach was a former employee of 

the Retirement Board, but also because Fossas-Marxuach and the Retirement Board were in active 

litigation in federal court. 

5. What the ERS argued in its Objection is that “Movant’s counsel in the Postpetition 

Action received actual notice through first class mail and email service of the Effective Date 

Notice, which was sent on March 28, 2022[.]” See ECF No. 24307 at 9, ¶16. In support of said

averment, the ERS made reference to ECF No. 20511, which is a Certificate of Service issued 

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under penalty of perjury by Moheen Ahmad, employee of Kroll Restructuring Administration LLC 

(“Kroll”), on March 30, 2022, in which Mr. Ahmad stated as follows:

On March 18, 2022, at my direction and under my supervision, employees of Kroll 

caused the following document to be served (1) via first class email on the Notice 

Party Service List attached hereto as Exhibit A; and (2) via email on Notice 

Parties Email Service List attached hereto as Exhibit B:

* Notice of (A) Entry of Order Confirming Modified Eight 

Amended Title III Plan of Adjustment of the Commonwealth of 

Puerto Rico, et al. Pursuant to Title III of PROMESA and (B) 

Occurrence of the Effective Date [Docket No. 20349]. 

See ECF at 20511 (Emphasis ours). Exhibits A and B of the Certificate of Service cited above are 

two tables titled “Notice Party Service List” and “Notice Parties Email Service List”, respectively. 

In both lists the undersigned’s name, Andrés Gorbea Del Valle, appears in the column 

corresponding to the Parties’ Names, and Fossas-Marxuach is nowhere to be found. It is clear that 

Fossas-Marxuach received no notice, either directly or through counsel. We respectfully submit 

that a notice directed and addressed to the undersigned counsel, as a party and without any 

reference to any client, cannot be deemed as adequate notice to the real party, which is FossasMarxuach. 

6. In contrast, let us analyze the notice sent to Fossas-Marxuach of the Objection filed 

by the ERS on May 24, 2023 (i.e., ECF No. 24307). Said Objection was notified to FossasMarxuach via first class mail, both through counsel and directly to Fossas-Marxuach’s address. 

See Exhibit 1. Even the notice that was sent through counsel has Fossas-Marxuach’s name.

See Exhibit 1. That is the correct way to do it. If not, how can the undersigned counsel know or 

identify to which client or case does a notice relates to, if the notice does not include the party’s 

name? Evidently, the alleged notice to which the ERS refers to, ECF No. 20511, was not addressed 

to Fossas-Marxuach, either directly or through counsel. Fossas-Marxuach does not appear in the 

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list of parties. Therefore, the ERS’ argument that Fossas-Marxuach was notified through the 

undersigned counsel of the (A) Entry of Order Confirming Modified Eight Amended Title III Plan 

of Adjustment of the Commonwealth of Puerto Rico, et al. Pursuant to Title III of PROMESA and 

(B) Occurrence of the Effective Date [Docket No. 20349], is meritless. 

7. Alternatively, the ERS argued that “even if such notice [i.e., the Notice discussed 

above allegedly sent to the undersigned counsel, as a party] were determined inadequate and the 

Extended Administrative Claim Bar Date were to apply to Movant’s Late-Filed POC, the Debtor 

provided publication notice of such deadline, which this Court has determined is adequate notice 

of the deadline to file proofs of claim.” See ECF No. 24307 at 9, ¶16. This statement is incorrect. 

The decision of this Honorable Court to which the ERS refers to is the Memorandum Order 

Concerning Mr. José López Medina’s Motion for Relief from the Automatic Stay Pursuant to 

PROMESA’s Sections 4, 7, 301(c)(3), 304(H) and Bankruptcy Code’s Sections 362(B)(4), (D)(1). 

See ECF No. 23878. In that case, Movant was Mr. José López Medina, who had filed a judicial 

action against the Puerto Rico Police Department (“PRPD”) on October 4, 2017. See ECF No. 

23878 at 3. As part of the judicial action filed by Mr. José López Medina against the PRPD, 

“[o]n February 8, 2018, the Department of Justice of the Commonwealth of Puerto Rico filed 

a notice of the automatic stay.” See ECF No. 23878 at 4 and 9.3 In addition, this Court noted 

that “Debtors undertook broad publication of notice of the Commonwealth’s Bar Date pursuant to 

the Bar Date Orders, including publishing notice of the Bar Date in English and Spanish language 

publications circulating in Puerto Rico and the mainland United States, as well as running radio 

advertisements throughout Puerto Rico.” Id. at 9. In other words, this Honorable Court ruled that 

3 Notably, no such notice, or similar, was ever filed in Fossas-Marxuach’s case against the Retirement Board.

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notice was adequate because both the Puerto Rico Department of Justice had filed a notice of 

automatic stay in López-Medina’s judicial action and notice by publication was made. 

8. The difference between José López Medina’s case and Fossas-Marxuach’s case is 

clear. In Fossas-Marxuach’s case, the Retirement Board never filed any notice informing FossasMarxuach that the case had to be stayed and that he needed to file a Proof of Claim in the Title III 

proceedings. Notice by publication alone is insufficient and inadequate.

9. The United States Supreme Court has held that notice by publication was 

“constitutionally defective as to known persons whose whereabouts were also known, because it 

was not ‘reasonably calculated, under all the circumstances, to apprise interested parties of the 

pendency of the action and afford them an opportunity to present their objections.’” See Dusenbery 

v. U.S., 534 U.S. 161, 168 (2002).

10. In Mullane v. Central Hanover Trust Co., 339 U.S. 306, 319 (1950), the United 

States Supreme Court held that published notice is normally inadequate when the intended 

recipient of such notice “could easily be informed by other means at hand”:

[W]hen notice is a person's due, process which is a mere gesture is not due process. 

The means employed must be such as one desirous of actually informing the 

absentee might reasonably adopt to accomplish it.... It would be idle to pretend that 

publication alone, as prescribed here, is a reliable means of acquainting interested 

parties of the fact that their rights are before the courts.

Id. at 315; see also United States v. 125.2 Acres of Land, 732 F.2d 239 (1st Cir. 1984).

11. In the present case, it is uncontested that the Retirement Board and the ERS knew 

that Fossas Marxuach had an active litigation against the Retirement Board. They also knew 

Fossas-Marxuach’s contact information. Therefore, to comply with constitutional due process 

requirements, Fossas-Marxuach had to be notified directly or through counsel. Notice by 

publication alone is insufficient and inadequate. As such, the ERS’ arguments should be rejected 

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by this Honorable Court and Fossas-Marxuach’s Motion for Allowance of Administrative Expenses 

Proof of Claim filed on February 4, 2023 Due to Lack of Notice [ECF No. 24183], should be 

granted.

11. The ERS also objected to Fossas-Marxuach’s alternative request for relief, to wit, 

that the judicial action he filed against the Retirement Board before the U.S. District Court for the 

District of Puerto Ricoon October 21, 2021, be deemed as a timely filed informal Administrative 

Expenses Proof of Claim. According to the ERS, Fossas-Marxuach’s judicial action cannot be 

deemed as an informal proof of claim because said action was not filed in the Title III case, but 

rather in another case (although in the same Court). This Honorable Court has discretion to allow 

Fossas-Marxuach’s judicial action as a timely filed informal Administrative Expenses Proof of 

Claim, particularly under the circumstances established above where Fossas-Marxuach received 

no notice of his obligation to file a Proof of Claim. In addition, the requirements established by 

the First Circuit in In re Belser, 534 B.R. 228, 238 (BAP 1st Cir. 2015), for the application of the 

informal proof of claim doctrine are all satisfied in Fossas-Marxuach’s case. For example, (1) the 

document must be in writing; (2) the document must contain a demand by the creditor on the 

debtor's estate; (3) the document must express an intent to hold the debtor liable for the debt; (4) 

the document must be filed with the court; and (5) based on the facts of the case, it would be 

equitable to allow the amendment. See In re Belser, 534 B.R. 228, 240 (BAP 1st Cir. 2015). 

Therefore, the ERS argument that Fossas-Marxuach’s judicial action against the Retirement Board 

cannot be deemed as a timely filed informal Administrative Expenses Proof of Claim is also 

meritless and should be rejected by this Honorable Court.

12. Finally, the ERS argued that “even if the Court were to allow [Fossas-Marxuach] 

to file the Late-Filed POC, [Fossas-Marxuach] fails to establish that he holds an underlying valid 

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claim against ERS[. . .] No final judgment has been entered against ERS in the Postpetition Action, 

and, therefore, Movant’s claim remains contingent.” See ECF No. 24307 at 12, ¶23, and at 13, 

¶24. This argument is also meritless because Fossas-Marxuach’s administrative expense claim 

can be managed through the administrative expenses claim procedures established in the Notice 

of Effective Date. the administrative expenses claims 

RELIEF REQUESTED

WHEREFORE, Fossas-Marxuach very respectfully requests this Honorable Court to 

deny the ERS’ Objection, and allow or accept Fossas-Marxuach’s Administrative Expenses Proof 

of Claim filed on February 4, 2023 or, alternatively, to accept the Complaint he filed against the 

Retirement Board before this same U.S. District Court on October 21, 2021 as an informal 

Administrative Expenses Proof of Claim. See Acisclo Fossas-Marxuach v. Retirement Board of

the Government of Puerto Rico and the Judiciary, Case No. 21-01513 (CVR), Dkt. #1. 

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, today May 31, 2023.

I HEREBY CERTIFY that on this same date we electronically filed the foregoing with 

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all 

participants and attorneys of record.

s/ Andrés C. Gorbea-Del Valle

Andrés C. Gorbea-Del Valle, Esq.

USDC-PR Bar No. 226313

PO Box 195191

San Juan, P.R. 00919-5191

Tel. (787) 217-2234

Email: andres_gorbea@yahoo.com

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