1 

 IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE DISTRICT OF PUERTO RICO 

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐x 

In re: 

THE FINANCIAL OVERSIGHT MANAGEMENT BOARD 

FOR PUERTO RICO 

as representative of 

THE COMMONWEALTH OF PUERTO RICO, ET ALS. 

DEBTORS 

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐x 

In re: 

  

THE FINANCIAL OVERSIGHT MANAGEMENT BOARD 

FOR PUERTO RICO 

as representative of 

PUERTO RICO ELECTRIC POWER AUTHORITY. 

DEBTORS 

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐x 

PROMESA TITLE III 

NO. 17 BKT 3283‐LTS  

PROMESA TITLE III 

NO. 17 BKT 4780‐LTS  

MOTION FOR RELIEF FROM AUTOMATIC STAY 

TO THE HONORABLE DISTRICT COURT JUDGE LAURA TAYLOR SWAIN: 

COME NOW, Antonio Fuentes‐Gonzalez, Maria Ivonne Viguié‐Fernandez, and the conjugal partnership 

constituted by them (hereinafter referred as “Fuentes‐Viguie”), through the undersigned attorneys and 

very respectfully state, allege and pray as follows: 

INTRODUCTION 

1. This  Honorable  Court  should  vacate  the  PROMESA1

  automatic  stay  with  regards  to 

Fuentes‐Viguié  in  the  prepetition  State  Court  Expropriation  Case No.  KEF  2012‐0039,  due  to  the  fact, 

                                                            

1

 Acronym for the Puerto Rico Oversight Management and Economic Stability Act, Public Law 114‐187.  

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 1 of 49
2 

among  other  reasons,  that  the  continuation  of  the  constitutional  violations  and/or  irreparable  harm 

against the rights of Fuentes‐Viguié to receive the just compensation for the temporary taking of their 

property outweighs the detriment that the Puerto Rico Electric Power Authority (hereinafter referred as 

“PREPA”) would suffer if the stay were vacated to address them.

FACTUAL & PROCEDURAL BACKGROUND 

2. On February 29, 2012, PREPA filed a taking petition under Civil Case KEF 2012‐0039, to 

acquire a right‐of‐way easement on the property owned by Fuentes‐Viguié for the purpose of constructing 

the project known as the “South Utilities Corridor”2

, hereinafter referred as “The Corridor.” Said case was 

filed before the Court of First Instance, San Juan Part, to obtain the right‐of‐way easement of 1,175.9715 

square meters3

. 

3.  “The Corridor” was a  taking  filed by PREPA acting in  the  furtherance of public health, 

safety and for the greater good of the public. 

4. Through  the  process  of  condemnation,  PREPA  kept  the  title  of  the  property  taken  for 

easement, depriving Fuentes‐Viguié of the total use of their property from February 29, 2012 to February 

24, 2016, when the Court of First Instance, San Juan Part, granted the Motion for Withdrawal petitioned 

by PREPA. Said taking for the time of one year, ten months and twenty‐five days by PREPA constituted a 

temporary  taking  for  which  PREPA  is  obligated  constitutionally  to  pay  Fuentes‐Viguié  for  the  just 

compensation.  

5. According to the Eminent Domain Law of Puerto Rico, the cause of action for the payment 

of just compensation for the temporary taking created after the withdrawal, can be exercised, like it was 

                                                            

2

 In Spanish, the name of the project is: “Corredor de Utilidades del Sur.”  3

 Equivalent to 0.2904852 acres. 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 2 of 49
3 

done in this case, within the same action as the taking. After all, this just compensation is the product of 

the withdrawal, and this, at the same time, is the result of the taking4

. 

6. After years of litigation, a judgment was rendered in which the Court understood that the 

just compensation owed to Fuentes‐Viguié for the temporary taking of their property was the amount of 

$630,470.655

,  this amount  includes  interest  until May  13,  2015.  See Exhibit II. This  is a  firm and  final 

judgment and accrues interest in  the amount of eighty‐six dollars and ninety‐two cents  ($86.92) daily, 

starting from the date of May 14, 2015, until the date of the total judgment payment.  

7. On August 14, 2017, PREPA presented a motion titled “Notice of Automatic Stay for PREPA 

Procedures under 48 U.S.C. Secs. 2101 et seq.”6

  In said motion, the Court of First Instance, San Juan Part, 

was  notified  that  on  July  2,  2017,  the  Financial  Oversight  and  Management  Board  for  Puerto  Rico, 

hereinafter referred as Oversight Board, had presented a Bankruptcy Petition, hereinafter referred to as 

Petition, in  the name of  PREPA  to  the United States District Court  for  the District of Puerto Rico. This 

Petition  was  submitted  in  accordance  with  Public  Law  114‐187,  known  as  the  Puerto  Rico  Oversight 

Management and Economic Stability Act, hereinafter referred as PROMESA.  

8. In  their motion,  PREPA  states  that  to  the aforementioned  petition applies,  by express 

provision of PROMESA, the provisions of Chapter 9 of the Bankruptcy Code, 11 U.S.C Sec. 303, 901 (a) et 

seq. That  pursuant  to  sections  362 and  922  of  the  Bankruptcy  Code,  the  filing  of  the  Petition  has  the 

automatic, immediate and direct effect of stopping any civil action that any natural or legal person has 

initiated, has tried to continue or for which the execution of a judgment has been requested against the 

government, while the bankruptcy proceedings are pending before the Court. For these purposes PREPA 

cites 11 U.S.C. Secs. 362 (a), 922 (a); 48 U.S.C. Sec. 2161 (a).  

                                                            

4

 Cynthia Torres Torres, La Expropiación Forzosa en Puerto Rico: Ley, jurisprudencia, estudio y guía práctica, ed., San 

Juan 2002, p. 205. 

5

  See  copy  of  the  judgment  granted  by  the  Court  of  First  Instance,  San  Juan  Part,  in  Spanish  and  the  English 

translation, Exhibit I and IA. 

6

 In Spanish titled, “Aviso de Paralización de los Procedimientos de la AEE bajo 48 U.S.C. Secs 2101 et seq”. 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 3 of 49
4 

9. On August 21, 2017, the Court of First Instance, San Juan Part, granted the motion filed 

by PREPA and issued an Administrative Judgment in the case, paralyzing the proceedings in the takings 

case. This situation has forced Fuentes‐Viguié to file this motion to lift the stay in this case, since this is 

the only remedy available to continue with the process to collect the just compensation that was awarded 

by the judgment for damages caused by the temporary taking of the property and guaranteed by the Fifth 

Amendment  to  the U.S.  Constitution7

 and  Art II,  Sec.  9  of  the  Constitution  for  the  Commonwealth  of

Puerto Rico8

. 

10. Although PREPA requested the stay in the Condemnation Proceedings pursuant to Title 

III of PROMESA, it has not disclosed before this Honorable Court the constitutional debt that is still, to this 

date, owed to Fuentes‐Viguié, for the just compensation that resulted from the taking of their property.  

11. This  constitutional  debt  has  not  been  disclosed  to  this  Honorable  Court  and  was  not 

included when PREPA  filed in  the case at bar a motion  titled “Notice of Filing of Creditor List  for “The 

Puerto Rico Electric Power Authority” on December 22, 2017, (See Docket 520) and is not included in any 

notices made to this court available to the public. 

12. Fuentes‐Viguié is faced with no other option than to request immediate relief from the 

Automatic Stay from this court in order to protect their constitutional rights to just compensation for the 

temporary taking of their private property by PREPA, a right that is guaranteed by the Fifth Amendment 

to the Constitution of the United States. 

13. In view of the facts stated above, as a party of interest, Fuentes‐Viguié must use all efforts 

to legally protect their constitutional rights so that they are not adversely affected by the Title III filing by 

PREPA.  

                                                            

7

 U.S. Const., amend. V. 

8

 Art. II, Sec. 9 Const. ELA, 1 LPRA. 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 4 of 49
5 

14. Furthermore, at the present time PREPA has not filed any motion or written statement 

recognizing the claim of just compensation owed to Fuentes‐Viguié as non‐dischargable, and PREPA has 

not even included Fuentes‐Viguié as a creditor on the Creditor List (See Docket (520). 

APPLICABLE LAW 

BANKRUPTCY AND THE FIFTH AMENDMENT 

15. The  Takings  Clause  of  the  Fifth  Amendment  to  the  Constitution  of  the  United  States 

mandates  that  "private  property  [shall  not]  be  taken  for  public  use, without  just  compensation." U.S. 

Const., amend. V. This amendment is made applicable to the states, and thus to municipalities, through 

the Fourteenth Amendment. U.S. Const. amend. XIV; Dolan DA v. City of Tigard, 512 U.S. 374, 383 (1994); 

Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 122 (1978). 

16. The  Supreme  Court  of  the  United  States  has  explained  that  "because  the  Fifth 

Amendment proscribes  takings without just compensation, no constitutional violation occurs until just 

compensation has been denied." Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 

194 n.13  (1985). The Supreme Court  further  stated,  "Nor does  the Fifth Amendment  require  that just 

compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a 

'reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking." 

Id. at 194  (citation omitted). "[T]he property owner cannot claim a violation of the  Just Compensation 

Clause until it has used the procedure [for seeking just compensation] and been denied . . . ." Id. at 195. 

17. Thus, a Takings Clause violation is defined by two elements: (1) the public taking of private 

property, and (2) the subsequent denial of just compensation for that taking. See Williamson, 473 U.S. at 

195 n.13. 

18. The  Supreme  Court  has  consistently  held  that  bankruptcy  laws  are  subject  to  the 

prohibition against governmental taking of private property without just compensation.  Louisville Joint 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 5 of 49
6 

Stock Land Bank v. Radford, 295 U.S. 555, 55 S. Ct. 854, 79 L. Ed. 1593 (1935), Blanchette v. Connecticut 

General Insurance Corps., 419 U.S. 102, 95 S. Ct. 335, 42 L. Ed. 2d 320 (1974). 

19. The Just Compensation Clause of the Fifth Amendment requires that the government pay 

the landowner for the value of the use of the land during the period of the taking. First English Evangelical 

Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318 (1987) Cf United States v. Causby, 328 U.S. 

256,261 (1946).  

20. Temporary takings that deny a landowner all use of his property are no different in kind 

from permanent takings,  for which the Constitution clearly requires compensation. English Evangelical 

Lutheran Church v. County of Los Angeles,482 U.S. at 318 Cf. San Diego Gas & Electric Co.. 450 U.S. 621,657 

(1981).  

21. Where the government’s activities have already worked a taking of all use of property, no 

subsequent action by the government can relieve it of the duty to provide compensation for the period 

which the taking was effective. Berman v. Parker 348 U.S. 26,33 (1954).  

PROMESA AND THE AUTOMATIC STAY PROVISION 

22. The  President  of  the  United  States  signed  PROMESA  into  law  on  June  30,  2016.  Said 

legislation seeks  to  tackle  the disastrous  fiscal emergency in Puerto Rico and is designed  to institute a 

“comprehensive  approach  to  [Puerto  Rico’s]  fiscal,  management  and  structural  problems  and 

adjustments... involving independent oversight and a Federal statutory authority for the Government of 

Puerto  Rico  to  restructure  debts  in  a  fair  and  orderly  process.”  PROMESA  405(m)(4).  The  statute 

established  a  seven‐member Oversight  Board  for  Puerto  Rico,  which  also  includes  an  eighth  member 

chosen  by  the  Governor,  with  the  purpose  of  providing  a  method  for  the  island  to  achieve  fiscal 

responsibility and access to the capital markets. Id. at §§ 101(b)(1). 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 6 of 49
7 

23. In relevant part, among PROMESA’s provisions is an automatic stay of all liability‐related 

litigation  against  the  Commonwealth,  which  is  applicable  once  the  Board  files  a  Title  III  petition  to 

commence  debt‐adjustment  proceedings  under  the  legal  framework set  forth  in  the  statute.  Id.  at  § 

405(d). Under PROMESA,  the Honorable Court may, however, grant relief  from  the stay  to a “party in 

interest” either “for cause shown”, or “to prevent irreparable damage”  to  the party’s interest in  their 

property. 

24. In  the  recent  case  of  Brigade  Leveraged  Capital  Structures  Fund  Ltd.  v. Alejandro 

García‐Padilla et al., 217 F. Supp. 3d 508, 517 (1st Cir. 2016), and in view of the fact that PROMESA does 

not define what constitutes cause for purposes of prevailing in a request for relief from the automatic 

stay, the First Circuit Court of Appeals established the governing standard for vacating the automatic stay 

“for cause” in the context of PROMESA. Specifically, the First Circuit held that, notwithstanding the actual 

necessity of the stay to address an imminent fiscal crisis, Congress anticipated that “certain circumstances 

might justify relief from the stay’s significant and rigid effects. It therefore included a form of safety  valve  

in  section  405(e)  of  PROMESA  to  allow  certain  holders  of  liability  claims against the Government of 

Puerto Rico to proceed with their actions, provided that they could effectively demonstrate “cause” for 

doing so”. (Emphasis Added). 

25. Section 362 (d)(1) of the Bankruptcy Code, 11 USC § 362(d)(1), states as follows: 

(d) On request of a party in interest and after notice and a hearing,  the  court  shall  

grant  relief  from  the  stay  provided under subsection (a) of this section, such as by 

terminating, annulling, modifying, or conditioning such stay—(1) for cause, including the 

lack of adequate protection of an interest in property of such party in interest. 

26. In defining what constitutes “cause” for relief from the automatic stay in the context of 

PROMESA, the First Circuit took into account the (i) judicial interpretations of the term within the context 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 7 of 49
8 

of section 362 of the United States Bankruptcy Code, 11 USC § 3621, and also, (ii) additional considerations 

related to the particular circumstances of the PROMESA legal framework. The Court began by noting that 

section of the Bankruptcy Code provides that courts may grant relief from the automatic stay to a party 

in interest for “cause”, but the statute also fails to expressly define how the term must be construed and 

applied. 11 USC § 362(d) (1); Brigade Leveraged Capital Structures Fund Ltd. v. Alejandro García‐Padilla et 

al., 217 F. Supp. 3d 508, 517 (1st Cir. 2016). 

27. In Brigade Leveraged, the First Circuit reiterated the discretionary nature of the decision 

to grant relief on a case‐by‐case basis. See Claughton v. Mixson, 33 F. 3d. 4, 5 (4th Cir. 1994) (noting that 

Congress “has granted broad discretion  to bankruptcy courts  to lift  the automatic stay and  the courts 

must determine when discretionary relief is appropriate on a case‐by‐case basis”.) The Court established 

that “the process of evaluating whether there is sufficient “cause” to vacate the automatic stay requires 

the  court  to  engage  in  an  equitable,  case‐by‐case  balancing  of  the  various  harms  at  stake.  Brigade 

Leveraged Capital Structures Fund Ltd. v. Alejandro García‐Padilla et al., 217 F. Supp. 3d 508, 518  (1st 

Cir.2016);  See,  e.g.,  Peerless  Ins.  Co  v.  Rivera,  208  B.R.  313,  315  (D.R.I.  1997)  (suggesting  that  cause 

generally exists “when the harm that would result from the continuation of the stay would outweigh any 

harm that might be suffered by the debtor...if the stay is lifted.”); In re Turner, 161 B.R. 1, 3 (Bankr. D. Me. 

1993) (“Cause may exist for lifting the stay whenever the stay harms the creditor and lifting the stay will 

not unduly harm the debtor.”); In re Harris, 85 BR 858, 860 (Bankr. D. Colo. 1998) (holding that vacating 

the automatic stay is appropriate where “no great prejudice will result to the debtor” and the “hardship 

to  the  creditor  resulting  by  continuing  the  stay  considerably  outweighs  the  hardship  to  the  debtor  by 

modification of the stay.”). (Emphasis Added). 

28. In view of the foregoing, the First Circuit held that the Court’s “ultimate task is to perform 

a careful balancing of the equities involved. It must assess the hardships realistically borne by plaintiffs if 

their requested relief is denied and determine whether those outweigh the harm likely to be visited upon 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 8 of 49
9 

the Commonwealth defendants if that relief is granted”. Brigade Leveraged Capital Structures Fund Ltd. 

v. Alejandro García‐Padilla et al., 217 F. Supp. 3d 508, 518‐519 (1st Cir. 2016). 

29. Even though the First Circuit held that the PROMESA stay is interpreted according to the 

case law arising under section 362 of the Code, it stated that “the concept of “cause”  embraced  by  the  

Court  for  purposes  of  the  PROMESA  stay  need  not  precisely mirror that adopted in the bankruptcy 

context”. Id at 520. 

30. In the case of In re City of Detroit, 524 BR 147 (Bankr. E.D. Mich. 2014), although a non‐

binding decision, it is a persuasive decision that should be taken into account by this Honorable Court.  

After wasting an extended amount of time submitting various amended plans of adjustment, the In re City 

of Detroit court deemed that any claims that arise under the Fifth Amendment Takings Clause should be 

excepted from discharge pursuant to Section 944 (c) (1) of the Bankruptcy Code. This Court decision was 

availed and recommended by the Attorney General of the United States. 

31. In the aforementioned case, the Bankruptcy Court agreed with the Attorney General of 

the  United  States  in  determining  that  in  interest  of  avoiding  a  finding  of  unconstitutionality,  the 

Bankruptcy Court should use its discretion under Section 944 (c) (1) of the Bankruptcy Code to order the 

nondischargeability of Fifth Amendment Takings Clause claims. Id. at 306‐307. 

32. In particular,  Section  944  (c)  (1)  of  the  Bankruptcy  Code  states  that  “the debtor is 

not discharged under subsection (b) of this section for any debt – (1) excepted from discharge by the plan 

or order confirming the plan,” 11 USC sec. 944.  

33. This Honorable Court should avoid "interpreting [a statute] in a manner that would render 

it clearly unconstitutional . . . if there is another reasonable interpretation available." Edmond v. United 

States, 520 U.S. 651, 658, 117 S. Ct. 1573, 137 L. Ed. 2d 917 (1997); see Lorillard v. Pons, 434 U.S. 575, 577, 

98 S. Ct. 866, 55 L. Ed. 2d 40 (1978)  ("[I]t  is  a  cardinal  principle  that  this  Court  will  first ascertain 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 9 of 49
10 

whether  a  construction  of  the  statute  is  fairly  possible  by  which  the  constitutional  question  may  be 

avoided."). 

34. Therefore,  if  the  Constitution  requires  a  money  damage  award,  pursuant  to  the  Fifth 

Amendment  Takings  Clause,  the  Bankruptcy  Court  should  except  the  takings  claims  from  Bankruptcy 

Proceedings. In re City of Detroit, supra. at 306‐307. 

35. Additionally,  “the  Automatic  Stay  does  not  apply  to  the  Condemnation  Proceedings 

because they are proceedings initiated by (and not against) the Debtor”. In re City of Detroit Michigan, 

Debtor  Case  13‐53846,  Doc  5146,  May  29,  2014,  page  3,  paragraph  6,  Ordered  Doc  5451,  June  19, 

2014.(Emphasis Added) 

36. In Bevelle v. Jefferson County (In re Bevelle), 348 B.R 812,819 (2016), the court found that 

the exception to the automatic stay established in sec. 362(b)(4) of the Bankruptcy Code would apply to 

eminent‐domain condemnation when the government was acting “in furtherance of public health, safety 

or warfare.”  

ARGUMENT 

37. At the present time PREPA owes Fuentes‐Viguié, the amount of $630,470.65, this amount 

includes interest until May 13, 2015, for the just compensation for the damages caused by the temporary 

taking of their property. The principal amount accrues interest of eighty six dollars and ninety two cents 

($86.92) daily, starting from May 14, 2015 until the amount is fully paid for. As of February 28, 2018, the 

total amount due, for the principal and accrued interest, is $719,236.62.  

38. Although PREPA has filed a list of Creditors (See Docket 520). In said list, PREPA does not 

include the constitutional debt owed to Fuentes‐Viguié as a Creditor. 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 10 of 49
11 

39. Because PREPA has not recognized the debt owed to Fuentes‐Viguié in the case at bar, it 

is denying Fuentes‐Viguié the just compensation for the taking of their private property for public use, 

according to the Fifth Amendment Takings Clause. See Williamson, 473 U.S. at 195 n.13. 

40. This  Honorable  Court  should  evaluate  PREPA’s  lack  of  recognition  of  Fuentes‐Viguié’s 

constitutional  debt as  “cause”  for  relief  from  the automatic  stay in  the  context  of  PROMESA. Brigade 

Leveraged, supra, at 517. 

41. This  constitutional  debt  granted  by  judgment  originated  from  an  expropriation 

proceeding from 2012 filed by debtor (PREPA), against Fuentes‐Viguié. Such obligation was overdue prior 

to PREPA submitting their Petition under PROMESA (2017).  

42. Furthermore, this constitutional debt cannot be discharged in the case at bar, especially 

when such taking was done for the benefit of public use and in the furtherance of public health and safety. 

43. Although  Courts  have  concluded  that  a  debt’s  nondischargeability  alone  may  not 

constitute “cause”  for justifying  relief  from  the automatic  stay,  said Courts  recognize  that if  there are 

other factors involved the lift of stay may be allowed. Disciplinary Bd. V. Feingold (In re Feingold), 730 F.3d 

1268, 1277‐1278 (2nd Cir. 2013). 

44. In Feingold, the Court stated the following: 

“We  agree  with  these  courts  that  nondischargeability  alone  cannot  supply  the  cause 

contemplated  by  §  362(d)(1),  otherwise  the  statutory  automatic  exceptions  for  the 

enumerated  nondischargeable  debts—like  domestic  support  obligations—found  in  §  

362(b) would be meaningless. In re Mu'min, 374 B.R.  at  161 ...   This  is not  to   say that 

nondischargeability cannot be a factor, or even a weighty factor, in a bankruptcy court's 

evaluation  of  "cause,"  but  the  Disciplinary  Board's  possession  of  a  nondischargeable 

judgment  against  Feingold,  without  more,  is  insufficient  to warrant relief from the 

automatic stay.” (omission and emphasis added). 

45. A review of Feingold, supra, will show that the Feingold Court remanded the case to the 

Bankruptcy Court so that it could gather more information and better evaluate, under the totality of the 

circumstances, if a party was entitled to relief from the automatic stay of a non‐dischargeable debt, so 

long as it had other factors. 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 11 of 49
12 

46. In this present case, extraordinary circumstances exist. For one, a constitutional violation 

is imminent if PREPA indeed seeks  to discharge its constitutional obligation. Two, PREPA has not even 

identified Fuentes‐Viguié as a creditor, when a constitutional taking has occurred. Three, no taking cases 

are considered in the Fiscal Plan submitted by the Government, thus depriving any person with the right 

to  just  compensation  who  has  been  affected  by  the  taking  of  their  private  property,  in  this  instance 

Fuentes‐Viguié. Four, the Automatic Stay does not apply to the Condemnation Proceedings because they 

are proceedings initiated by (and not against) the Debtor and such proceedings were for public use and 

in the furtherance of public health, safety and welfare. (Emphases Added ) 

47. Even though the Courts recognize that an analysis of whether to enforce or vacate the 

stay usually relies upon a laundry list of assorted factors, said factors are not exhaustive. See, e.g., Sonnax 

Industries, Inc. v. Tri Component Prods. Corp. (In re Sonnax Industries, Inc.), 907 F.2d 1280, 1286 (2d Cir. 

1990). 

48. This  Honorable Court  should  pay  special  heed  to  the  following  Sonnax factors: 1)

whether relief would result in a partial or complete resolution of the issues, 2) the  interests  of  judicial  

economy  and  the  expeditious  and  economical  resolution  of litigation; and 3) impact of the stay on the 

parties and the balance of harms. See id. at 799‐800. Sonnax, supra, at 1286. 

49. Regarding  the  first  factor,  lifting  the  stay  will  completely  resolve  the  constitutional 

challenge  that  a  constitutional  creditor  like  Fuentes‐Viguié  may  be  able  to  exercise  if  their  just 

compensation  is  denied.  Just  like  in  In  re  Detroit,  this  Honorable  Court  should  avoid  "interpreting  [a 

statute]  in  a  manner  that  would  render  it  clearly  unconstitutional  .  .  .  if  there  is  another  reasonable 

interpretation available." In re City of Detroit, 524 BR 147 (Bankr. E.D. Mich. 2014). 

50. Regarding  the  second  factor,  lifting  the  stay  will  protect  the  interests  of judicial 

economy  and  economical  resolution  of  litigation  within  these  PROMESA  Title  III  proceedings.  This 

Honorable  Court  should  note  that  if  PREPA  continues  to  ignore  the  Fifth  Amendment  creditors  or 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 12 of 49
13 

subjecting  Fifth  Amendment  creditors  to  their  Adjustment  Plan  or  Fiscal  Plan  with  the  risk  of  being 

discharged, it will continue to delay time in the proceedings in later stages. These plans will be in danger 

of being constitutionally challenged in every crossroads by the Fifth Amendment creditors, subjecting  this  

Honorable  Court  to  keep  seeking  ways  to avoid  interpreting  the PROMESA statute in a manner that 

will not render it unconstitutional. 

51. Regarding  the  third  factor, lifting  the  stay will  do less  harm in  the end  for  PREPA and 

Fuentes‐Viguié because the Adjustment Plan or Fiscal Plan will not be in danger of being challenged on 

constitutional grounds. In our opinion, PREPA refuses to disclose information as to its Fifth Amendment 

Creditors to this Honorable Court because PREPA knows that the lift of the stay should be granted.  

52. If this Honorable Court seeks any other case law, it will see that not a single case has been 

found  in  which  a  government  or  Municipality  has  violated  the  Fifth  Amendment  rights  of  a  party  by 

denying just  compensation during a bankruptcy proceeding. This is  so because if just compensation is 

denied, the entire bankruptcy proceeding would be questioned for its constitutionality. 

53. PREPA will not be damaged by the lift of stay against the constitutionally protected right 

of Fuentes‐Viguié to receive just compensation for the temporary taking of its property.   In fact, the lift 

of stay will allow PREPA to comply with its constitutional requirements of paying the just compensation 

established in the Fifth Amendment and guaranteed to Fuentes‐Viguié. 

54. If the lift of the automatic stay is granted, there will be no litigation involved, there will 

be  no  opening  of  a  floodgate  for  similar  cases  or  litigation,  and  there  will  be  no  additional  expenses 

incurred, only the payment of the judgment owed to Fuentes‐Viguié. 

55. In this case, the balance of harm clearly favors lifting the automatic stay and obligating 

PREPA to honor its constitutional obligation. 

56. Finally, it is important to bring to this Honorable Court that, as has been stated before, 

the condemnation proceeding is a process initiated by the State against the interested party to deprive it 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 13 of 49
14 

of its property against its will, in exchange for the payment of just compensation as it is so ordered by the 

Fifth Amendment to the U.S. Constitution. 

57. In cases where the State uses their power of eminent domain  for the taking of private 

property for public use or “in the furtherance of public health, safety, or warfare, the automatic stay does 

not apply.” Bevelle v.  Jefferson County  (In  re Bevelle), 348 B.R. 812, 819  (2006). From  this, it is clearly 

visible that the State does not have the authority to do a taking of private property and not pay the just 

compensation by petitioning for an automatic stay in a bankruptcy court.  

58. We  understand  that,  in  accordance  with  the  due  process  clause,  established 

constitutionally in the Fifth Amendment, the party with interest in a takings case must have the same right 

to be able to lift the automatic stay as to collect the just compensation for the damages caused by the 

taking carried out by the State.  

59. If this is not allowed, it will cause irreparable damage to the party with interest and would 

allow  the State  to deprive a person of  their property  through  the mechanism of a  taking,  then  file  for 

bankruptcy and discharge the debt of just compensation owed as payment for the taking. Understandably, 

this would be unconstitutional and could constitute an injustice and a clear violation of the Takings Clause 

of  the  Fifth  Amendment  and  the  Due  Process  Clause  contained  in  both  the  Fifth  and  Fourteenth 

Amendments to the U.S. Constitution.   

60. Art. II, Sec. 9, of the Constitution of the Commonwealth of Puerto Rico, establishes that 

“[p]rivate  property  shall  not  be  taken  or  damaged  for  public  use  except  upon  payment  of  just 

compensation and in the manner provided by law”. Art. II, Sec. 9, Const. ELA, 1 LPRA. The requirements 

established by Section 9 have the purpose of imposing a limit on the power of eminent domain of the 

State and, at the same time, safeguard citizens from unreasonable actions and unjust or no compensation 

from a taking. A. Matos Rivera, Vivienda, Propiedad y Justicia, 86 Rev.Jur. UPR 969,983 (2017). [A. Matos 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 14 of 49
15 

Rivera, Housing, Property and Justice, 86 Rev.Jur. UPR 969,983 (2017)] citing,  Cynthia Torres Torres, La 

Expropiacion Forzosa en Puerto Rico: Ley, jurisprudencia, estudio y guía práctica, ed., San Juan 2002, p. 4.  

61. With regard to just compensation, the Supreme Court of Puerto Rico has indicated that 

the payment is intended to "place the owner of the property in an economic situation equivalent to that 

in which he was, prior to the taking of his property." Amador Roberts v. ELA, 191 DPR 268,278‐279 (2014).  

62. In  the  same  manner,  the  Fifth  Amendment  to  the  Constitution  of  the  United  States 

mandates  that  "private  property  [shall  not]  be  taken  for  public  use, without  just  compensation." U.S. 

Const. amend. V. 

63. It is important to bring to the attention of this Honorable Court that PROMESA, aside from 

incorporating sections 362 and 922 of the Bankruptcy Code, states that: “(...)nothing in this chapter shall 

be  construed  as  impairing  or  in  any  manner  relieving  a  territorial  government,  or  any  territorial 

instrumentality thereof, from compliance with Federal laws or requirements(...).” 48 USC Sec. 2106. 

64. That  is,  the  statute  itself  recognizes  that  the  Title  III  process  does  not  exempt  the 

territorial government of Puerto Rico  from the duty to comply with the Federal Constitution, including 

the  Fifth  Amendment.  Therefore,  by  not  lifting  the  stay  on  the  taking  case  that  PREPA  filed  against 

Fuentes‐Viguié in the Court of First Instance, San Juan Part, Fuentes‐Viguie's right to just compensation 

would be undermined. Postponing such payment would violate the constitutional right held by Fuentes‐ 

Viguié and would be contrary to the protection given by said statutes and a detriment to justice. 

65. Not allowing  the stay  to be lifted would allow PREPA  to have enjoyed  the property of 

Fuentes‐Viguié  for  the  time  of  1  year,  10  months  and  25  days,  without  the  obligation  to  fulfill  its 

constitutional duty to pay the just compensation. Consequently, this would allow the State to exercise its 

right of eminent domain, obtain possession and even ownership of a property and then cause a stay on 

the case, so as not to disburse the just compensation guaranteed by the Constitution, the Supreme Law 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 15 of 49
16 

of the Land. In other words, it would allow the State to take private property for public use without having 

to pay just compensation. 

66. When analyzing the exceptional situation that takes place in a takings case, we must bear 

in mind that it is not a case of damages or a breach of contract where the citizen submits a claim to the 

State to recover money. Here, it is the State itself that takes and deprives a person of their property and 

it  must  not  be  allowed  to  use  the  automatic  stay  procedure  provided  by  the  Bankruptcy  Code  as  a 

subterfuge for not paying.

67. For  all  of  the  reasons  previously  mentioned  in  this  motion,  we  respectfully  ask  this 

Honorable Court to vacate the automatic stay in regards to Fuentes‐Viguié in the State Court takings Case 

KEF 2012‐0039, since violation of Fuentes‐Viguié’s constitutional rights is an irreparable harm and injustice 

that should be avoided. 

68. Attached  as  Exhibit  I  is  a  copy  of  the  Unsworn  Statement  Under  Penalty  of  Perjury 

certifying that the Lift of Stay Notice was sent to the counsels.  

WHEREFORE, Fuentes‐Viguié respectfully requests  that  this Honorable Court  (1)  take notice of 

the  foregoing,  (2)  after  notice  and  hearing,  enter  Order  vacating  the  automatic  stay  arising  under   

PROMESA, and allow the proceedings to continue in the present Case KEF 2012‐0039 in the Court of First 

Instance,  San  Juan  Part,  so  that  Fuentes‐Viguié  is  paid  the  just  compensation  for  the  taking  of  their 

property, as it is stated in the judgment issued by said Court, and (3) grant any other additional relief that 

may be deemed just and proper. 

CERTIFICATE OF SERVICE 

WE HEREBY CERTIFY that on this same date, the foregoing Motion was electronically filed with 

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

of record. 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 16 of 49
17 

RESPECTFULLY SUBMITTED:  In Ponce, Puerto Rico on this  25th day of   May, 2018. 

/s/Antonio Fuentes‐González   

ANTONIO FUENTES‐GONZÁLEZ   

USDC BAR NUMBER 118902 

G.P.O. BOX 7764  

PONCE, P.R. 00732‐7764    

TELEPHONE: (787) 409‐7980 

FACSIMILE: (866) 908‐7044 

E‐MAIL: antoniofuentesgonzalez@yahoo.com  

/s/María E. Vicéns Rivera 

MARÍA E. VICÉNS RIVERA LAW OFFICE 

USDC BAR NUMBER 226711 

9140 MARINA ST.,SUITE 801 

PONCE, P.R. 00717 

TEL./FAX. (787) 259‐1999 

EMAIL: mevicens@yahoo.com  

  

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 17 of 49
UNSWORN STATEMENT UNDER PENALTY OF PERJURY 

Comes  now Antonio Fuentes‐González as  counsel  for Antonio Fuentes‐González, María Ivonne Viguié‐

Fernández and the conjugal partnership constituted by them, under penalty of perjury and respectfully 

declares that the foregoing is true and correct: 

1‐On March 26, 2018 I sent an email  to Mr. Herman Bauer, Esq., Mr. Ubaldo Fernández, Esq. and Mr. 

Kelvin Finger, Esq. containing the Lift of Stay Notice with the information requested in Paragraph III.U, in 

compliance  with  the Operative  Case Management Order  of  Title III  Bankruptcy  case  no.  17‐03283,  as 

amended by the Order Further Amending Case Procedures (docket no. 1512) regarding the prepetition 

case of Puerto Rico Electric Power Authority v. Antonio Fuentes González et al, Case No. KEF 2012‐0039, 

pending at the Puerto Rico Court of First Instance, San Juan Part. A reply was never received. 

2‐On April 6, 2018, I called the office of Mr. Ubaldo Fernández, Esq., and spoke to his secretary,named 

Rebecca, but the attorney was not there at that time. I left a message with the secretary asking if Mr. 

Fernández could please call me in regards to the Lift of Stay Notice for the case of Puerto Rico Electric 

Power Authority v. Antonio Fuentes González et al, Case No. KEF 2012‐0039, pending at the Puerto Rico 

Court of First Instance, San Juan Part. A reply was never received. 

3‐On April 10, 2018 a second email was sent to counsels and a reply was never received. 

4‐On April 13, 2018 I spoke  to counsel Ubaldo Fernández about  the Lift of Stay Notice  for  the case of 

Puerto  Rico  Electric  Power  Authority  v.  Antonio  Fuentes  González  et  al,  Case  No.  KEF  2012‐0039.  The 

purpose of this call was to set up a conference meeting between all counsels so that we could speak about 

the case. Mr. Fernández agreed to contact me but I never received a call regarding this matter.   

5‐ On April 23, 2018, as a last attempt to get a reaction from counsels a third email was sent. In the email, 

I mentioned that I was willing to have a conference meeting on Thursday, May 3, 2018. From 10:00‐12:00 

noon or  from 2:00‐ 4:00 p.m. A  reply was never  received. I also spent  that entire Thursday waiting  to 

receive a call or an email but did not receive any type of response from any of the counsels 

6‐On May 11, 2018 I received an email from the Puerto Rico Electric Power Authority (PREPA) Counsel 

notifying that PREPA does not agree to modify the automatic stay to allow movants to continue with the 

execution of judgement.   

By signing this unsworn statement under penalty of perjury, I certify that all the statements are true and 

correct.  

Executed on May  25th , of the year 2018. In Ponce, Puerto Rico. 

   

/s/Antonio Fuentes González 

ANTONIO FUENTES GONZÁLEZ 

         

D Ser/ D Fed AEE 

Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 18 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 19 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 20 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 21 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 22 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 23 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 24 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 25 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 26 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 27 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 28 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 29 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 30 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 31 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 32 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 33 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 34 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 35 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 36 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 37 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 38 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 39 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 40 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 41 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 42 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 43 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 44 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 45 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 46 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 47 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 48 of 49
Case:17-03283-LTS Doc#:3159 Filed:05/25/18 Entered:05/25/18 17:04:41 Desc: Main

Document Page 49 of 49