UNITED STATES DISTRICT COURT 

 DISTRICT OF PUERTO RICO 

IN RE: PROMESA 

 TITLE III 

THE FINANCIAL OVERSIGHT MANAGEMENT 

BOARD FOR PUERTO RICO, 

 as representative of No. 17 BK 3283-LTS 

 

THE COMMONWEALTH OF PUERTO RICO, et al., (Jointly Administered) 

 

 DEBTORS 

_________________________________________________ 

 

IN RE: PROMESA 

 TITLE III 

THE FINANCIAL OVERSIGHT AND MANAGEMENT 

BOARD FOR PUERTO RICO, 

 as representative of No. 17 BK3567-LTS 

PUERTO RICO HIGHWAYS AND 

TRANSPORTATION AUTHORITY (“HTA”) 

 DEBTOR 

_________________________________________________ 

LIFT STAY NOTICE 

TO COUNSELS: 

COMES NOW creditor, Sucesión Pastor Mandry Mercado, through its undersigned 

counsel and very respectfully states and prays: 

1. Pursuant to Paragraphs III.Q and III.U of Section III (Scheduling) of the Case 

Management Procedures, as amended by Fourth Amended Case Management Order (docket no. 

2839), and subject to Paragraphs III. F and III.T, at least fifteen (15) business days prior to filing 

a Stay Relief Motion to continue a prepetition ordinary course civil action against a Debtor other 

than PREPA, the movant shall contact the counsel for the Oversight Board and AFAA by 

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Lift Stay Notice 

Case KEF2011-0244 Puerto Rico Highways and Transportation Authority v. Finca Perseverancia, Inc., et al. 

Sucesión Pastor Mandry Mercado party with interest 

2 

electronic-mail to advise them of the movant’s intent to seek relief from the automatic stay (the 

“Lift Stay Notice” and the notice period, the “Lift Stay Notice Period”). 

2. The Lift Stay Notice shall include (i) the identity of the movant and its contact 

information, (ii) the claim(s), lawsuit(s), or other proceeding(s) for which movant seeks relief from 

the automatic stay, including the relevant case number and court information, (iii) the amount of 

the claim(s) and the asserted causes of action, (iv) a brief description of the status of the underlying 

claim(s), lawsuit(s), or proceeding(s), and (v) cause as to why the stay should be lifted. 

3. In compliance with the above mentioned Fourth Amended Case Management 

Order, creditor submits the following brief. 

I. INTRODUCTION

4. On May 21, 2017, Debtor, Puerto Rico Highways and Transportation Authority 

(hereinafter “HTA”) by its representative and pursuant to section 315 of the Puerto Rico Oversight, 

Management, and Economic Stability Act (hereinafter “PROMESA”), the Financial Oversight and 

Management Board for Puerto Rico filed a voluntary petition in the United States District Court 

for the District of Puerto Rico under Title III of PROMESA seeking relief from creditors. 

5. HTA has an eminent domain case pending final disposition at the Puerto Rico Court of 

First Instance in San Juan, courtroom with expertise in eminent domain, Puerto Rico Highways 

and Transportation Authority v. Finca Perseverancia, Inc., et al., civil case no. KEF2011-0244, 

were Sucesión Pastor Mandry Mercado (hereinafter the “Estate”)1 is a party with interest. (See 

Exhibit I for an itemized disclosure of the members of Sucesión Pastor Mandry Mercado with their 

 

1 Mr. Javier Mandry Mercado, a member of the Estate, is the only member of the Estate not represented by the 

undersigned counsel.

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respective participations). On July 13, 2017, HTA filed a motion at the state court requesting the 

automatic stay of the proceedings pursuant to sections 362(a) and 922(a) of the Bankruptcy Code, 

as incorporated by reference under section 301(a) of PROMESA; and on July 17, 2018, the state 

court issued an administrative judgment staying the proceedings. 

II. BACKGROUND 

 6. Dated August 25, 2011, HTA filed an action of eminent domain against Finca 

Perseverancia and others at the Puerto Rico Court of First Instance in San Juan, courtroom with 

expertise in eminent domain, civil case no. KEF2011-0244, along with a motion for the acquisition 

and surrender of the property. The property consists of certain parcels of land owned by Finca 

Perseverancia at the time of the taking, namely parcels number 020-01, 020-02, 020-03, 020-04, 

020-05, 020-06, 020-07, 020-08, 020-09; and two other parcels of land, parcels number 028-01 

and 028-02, were the Estate has a 21.25% ownership interest, located at Magueyes Urbano Ward 

in Ponce. The purpose of the taking being the construction of project HTA-000911 Highway PR9 from PR-132 to PR-123. 

When the petition was filed, HTA deposited with the court the amount of $1,050,900.00 

as an estimated amount of just compensation. On February 18, 2014, HTA submitted an amended 

Exhibit A reevaluating, inter alia, the value of the expropriated parcels of land and stating the 

amount of estimated just compensation to be $606,050.00. HTA requested that the excess be 

returned to pay for another expropriation (ACT vs. Adrian Mercado, et al., civil case number 

KEF2011-0240). Of the total amount consigned as just compensation, $500,636.50 was withdrawn 

by Finca Perseverancia on February 20, 2014. A total amount of $105,413.50 ($1,050,900.00 – 

500,636.50) remains consigned at the state court. 

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The value per unit offered by HTA for parcels number 028-01 and 028-02 are not in 

controversy since all of the parties with interest have agreed on it. The total amount offered by 

HTA for said parcels of land is $226,620.00 as stated in an amended Exhibit A provided by HTA 

on a motion filed on April 4, 2017. See Exhibit II, p.15.2

On May 2, 2017, the pre-trial conference was held. Anita Cortés Centeno, Esq. appeared 

in representation of HTA. The minute of the hearing reflects that César Hernández Colón, Esq., 

representing the Estate in the state court case, requested the Court to allow the withdrawal of the 

$48,156.75, the equivalent to 21.25% ownership interest the Estate has in parcels number 28-01 

and 28-02 ($226,620.00 x 21.25%) according to their participations. More specifically, attorney 

Hernández Colón requested that $10,064.76 be transferred to civil case number JJV2011-1103 

were the members of the estate of Salvador Eduardo Mandry Nones (with a 20.90% participation 

in the Estate) are elucidating the partition of their inheritance. See Exhibit III, p. 6, ¶73. The Court 

ordered that a check be issued for such purpose and another check for $1,492.85 payable to Mr. 

Javier Eduardo Mandry Mercado, which represents his 3.10% percentage of participation in the 

Estate ($48,156.75 x 3.10%). An itemized list of the remaining members of the Estate and the 

amounts payable according to their percentage of participation was provided by attorney 

Hernández Colón as stated in the minute. However, the Court never issued the checks. 

A hearing was scheduled for September 14, 2017. On July 17, 2017, an Administrative 

Judgment was entered by the state court staying the proceedings. 

It must be mentioned that a Stipulation between HTA and Finca Persevarancia, Inc. was 

signed on June 14, 2018, and included in the Fourth Omnibus Order Granting Relief From the 

 

2 Exhibit II, Amended Exhibit A (KEF2011-0244), has been submitted in the Spanish language and can be provided 

in the English language upon request. 

3 Exhibit III, Minute of the pre-trial conference, has been submitted in the Spanish language and can be provided in 

the English language upon request.

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Automatic Stay approved by the Court on June 20, 2018, (docket no. 3326) modifying the stay for 

the same case, Puerto Rico Highways and Transportation Authority v. Finca Perseverancia, Inc., 

et al., civil case no. KEF2011-0244. However, said Stipulation, on p.4, ¶5, states that: 

 Nothing in this Stipulation shall be deemed or 

construed as (a) creating or conferring any right upon 

any persons or entities (other than Movant as expressly 

provided in this Stipulation), or (b) evidence of any 

willingness or obligation on HTA’s part to consent to 

any other or future modifications of relief from Title III 

Stay with respect to any persons or entities. 

Even when the stay has been modified in the Puerto Rico Highways and Transportation Authority 

v. Finca Perseverancia, Inc., et al., civil case no. KEF2011-0244, it applies only to Finca 

Perseverancia, Inc. who was the Movant when the Stipulation was signed. 

 The Estate’s situation is different from the situation of Finca Perseverancia, Inc. The price 

offered for the parcels of land taken by HTA ($226,620.00), namely parcels 028-01 and 028-02, 

were the Estate has a 21.25 % of participation ($48,176.55), is not in controversy and the money 

is consigned at the state court. The state court even issued an order for the clerk of the Court to 

issue a check for $10,064.76 to be consigned in civil case number JJV2011-1103 were the 

members of the estate of Salvador Eduardo Mandry Nones (with a 20.90% participation in the 

Estate) are elucidating the partition of their inheritance and an itemized list of the remaining 

members of the Estate and the amounts payable according to their percentage of participation was 

provided (see Exhibit II, p. 6 and 7). 

 It is the Estate’s position that the money consigned at the state court is not protected by the 

automatic stay neither under 11 U.S.C. §362(a) nor §922. The money consigned is not property of 

HTA since it represents the just compensation paid for the property taken, as provided in the Law 

of Eminent Domain, 32 L.P.R.A. 2970, and HTA has no further interest in such funds. 

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III. APPLICABLE LAW 

7. Section 362(d)(1) of the Bankruptcy Code (11 U.S.C. §362(d)(1)) reads 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... 

8. The courts examine numerous different factors, including those set forth in In re Sonnax 

Indus., 907 F.2d 1280 to determine whether “cause” exists to grant relief from stay. The twelve 

factors adopted by the court in Sonnax are: 

(1) whether relief would result in partial or complete issue 

resolution; (2) lack of connection with or interference with 

bankruptcy case; (3) whether other proceeding involves debtor as 

fiduciary; (4) whether specialized tribunal with necessary expertise 

has been established to hear cause of action; (5) whether debtor's 

insurer has assumed full defense responsibility; (6) whether the 

action primarily involves third parties; (7) whether litigation in 

another forum would prejudice interests of other creditors; (8)

whether judgment claim arising from other action is subject to 

equitable subordination; (9) whether movant's success in other 

proceeding would result in a judicial lien avoidable by debtor; (10) 

interests of judicial economy and expeditious and economical 

resolution of litigation; (11) whether parties are ready for trial in 

other proceeding; (12) impact of stay on parties and balance of

harms. In re Sonnax Inds., supra, at 1287 citing In re Curtis, 40 

Bankr. 795, 799-800 (Bankr. D. Utah 1984). 

 Other courts have established that the Curtis moving party “need not prove a plurality of 

Curtis factors before it has shown cause existed for lifting the stay.” Goya Foods v. Unanue-Casal 

(In re Unanue-Casal), supra, at 96. Some courts have relied on only a few factors to determine 

that sufficient cause existed to lift the stay. See, e.g., In re Unioil, supra, at 194-95 (court 

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considered five factors such as resolution of the issues, lack of connection with the bankruptcy 

case, judicial economy and balance of hurt). See also Highcrest Management Co., 30 Bankr. at 

778-779 (court considered only the debtor's misconduct, without any Curtis factors). 

 The court in Goya Foods v. Unanue-Casal (In re Unanue-Casal), supra, at 96 correctly 

stated that “the question of what is cause . . . is developed primarily by case law.” In other words, 

the determination of cause is made on a case by case basis. 

 9. Article II, Section 9, of the Constitution of the Commonwealth of Puerto Rico, P.R. 

Const. Art. II, § 9, states that “private property shall not be taken or damaged for public use 

except upon payment of just compensation and in the manner provided by law.” (Emphasis 

added). 

10. The Takings Clause of the Fifth Amendment 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. In re City of Detroit, 524 B.R. 147, 268 (Bankr. E.D. Mich. 2014) citing 

Dolan v. City of Tigard, 512 U.S. 374, 383, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994); Penn Cent. 

Transp. Co. v. City of N.Y., 438 U.S. 104, 122, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). 

11. The Fourteenth Amendment of the United States Constitution provides that “nor shall 

any State deprive any person of life, liberty, or property, without due process of law.” (Emphasis 

added). U.S. Const. amend. XIV. The limitations of the Fifth Amendment also apply, through the 

Due Process Clause of the Fourteenth Amendment, to takings by state governments and their 

subdivisions. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992). Consequently, the 

Fifth Amendment is applicable to municipal debtors, and a municipal debtor may not take property 

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without just compensation. 

12. The Supreme Court of the United States has addressed the takings issue in the context 

of bankruptcy on several occasions, holding each time that the bankruptcy power is limited by the 

Fifth Amendment. See United States v.Security Indus. Bank, 459 U.S. 70, 75, 78 (1982); Wright v. 

Vinton Branch of Mtn. Trust Bank, 300 U.S. 440, 456-58 (1937); Louisville Joint Stock Land Bank 

v. Radford, 295 U.S. 555, 589 (1935). The protections afforded by the Fifth Amendment are not 

abrogated by the Bankruptcy Code. The legislative history of the Bankruptcy Code indicates that 

the drafters of the Bankruptcy Code considered the Fifth Amendment to be a limitation upon the 

impairment of property rights in bankruptcy, and current bankruptcy law gives great deference to 

property rights. Julia Patterson Forrester, Bankruptcy Takings, 51 Fla. L. Rev. 851, 863 (Dec. 

1999). 

13. The Supreme Court has stated that 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 Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 

473 U.S. 172, 195 n.13, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985).

14. Section 944(c)(1) of the Bankruptcy Code provides 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. U.S.C. § 944. 

15. Property that does not belong to debtor at the time a bankruptcy petition is filed is not 

subject to the automatic stay under neither 11 U.S.C. §362 (a) nor §922 (a). See, e.g. In re Atl. Gulf 

Cmtys. Corp., 369 B.R. 156, 164 -65 (Bank. D. Del. 2007) (were the Court concludes that the 

Escrow is not property of the estate, even though the contingent interest that the Debtor has in the 

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Escrow is property of the estate). Only property in which the debtor held an interest at the 

commencement of the case is protected by the automatic stay. 

16. The Law of Eminent Domain, 32 L.P.R.A. 2970, provides that as soon as the 

declaration of taking and delivery is filed, and the deposit of the amount estimated as just 

compensation and specified in said declaration is made in the court for the benefit and use of the 

person or entity entitled to it, absolute title to said property vests in the petitioner that requested 

the expropriation and the right to fair compensation for the same vests in the person or entity 

entitled to it. 

IV. DISCUSION AND ARGUMENT

17. In the case at hand, the Estate reaffirms its position that the funds consigned at the state 

court by HTA as just compensation for the property taken is not part of the bankruptcy estate. 

However, the state case has been stayed by an administrative judgement and has to be modified in 

order to request the withdrawal of the funds that represent the payment of just compensation. 

Once the property was taken and the title vested in HTA, the right to just compensation 

vests in the Estate. This is how the Law of Eminent Domain complies with Article II, Section 9, 

of the Constitution of the Commonwealth of Puerto Rico, supra, which provides that “private 

property shall not be taken or damaged for public use except upon payment of just compensation 

and in the manner provided by law.” Wherefore, HTA had no further interest in the funds 

consigned in the state court as just compensation and the stay does not extend to say funds. 

Of the twelve factors adopted by the court in Sonnax to determine if cause exists to grant 

relief from stay at least five weigh in favor of the Estate. 

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First, whether relief would result in partial or complete issue resolution and second, 

whether specialized tribunal with necessary expertise has been established to hear cause of action. 

HTA has a state eminent domain case pending final disposition at the Puerto Rico Court of First 

Instance in San Juan, courtroom with expertise in eminent domain, against the Estate in which 

there is no controversy pending since the parties with interest have agreed on the price per unit 

offered as just compensation and consigned at the state court. Modifying the stay to allow the 

withdrawal of funds that are not part of the bankruptcy estate will terminate the participation of 

the Estate in the state court. 

Third, lack of connection with or interference with bankruptcy case. The termination of the 

Estate case at the state court will not interfere with the Title III case since there is no relationship 

between the issues and/or controversies. On June 10th, 2017 Sucesión Pastor Mandry Mercado, 

represented by the undersigned counsel, requested a relief from automatic stay for an inverse 

condemnation case stayed by the Commonwealth of Puerto Rico (hereinafter “Debtor”) pursuant 

to sections 362(a) and 922(a) of the Bankruptcy Code, as incorporated by reference under section 

301(a) of PROMESA, were the only issue pending was the determination of just compensation 

(docket no. 305). Debtor opposed the request from relief from stay and the Court lifted the stay to 

allow the litigation to proceed to a determination of damages prior to the entry of judgment 

(Memorandum Order, docket no. 600). Moreover, the Court stated that “allowing the Litigation to 

proceed would not interfere with the Title III case.” (Memorandum Order, page 3, ¶2). In the 

present case, there is no litigation regarding the Estate and the withdrawal of funds will terminate 

the Estate’s participation. 

Fourth, whether litigation in another forum would prejudice interests of other creditors. 

The withdrawal of consigned funds at the state courtroom with expertise in eminent domain has 

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no direct or indirect effect on any of HTA’s creditors. Moreover, the funds are neither part of the 

bankruptcy estate nor protected by the stay. 

Fifth, the impact of stay on parties and balance of harms. The Fifth Amendment and the 

Fourteenth Amendment of the United States Constitution and Article II, Section 9, of the 

Constitution of the Commonwealth of Puerto Rico provide that private property shall not be taken 

for public use without just compensation. The continuance of the stay will be detrimental to the 

Estate who will be deprived of its constitutional right to obtain a just compensation for a property 

taken since 2004. Whereas, HTA will suffer no harm if the stay is lifted to allow withdrawal of 

funds that are not part of the bankruptcy estate. 

V. CONCLUSION 

18. The Estate has established with substantial arguments first, that the consigned funds at 

the state court for payment of just compensation are neither part of the bankruptcy estate nor 

protected by the automatic stay since HTA has no further interest nor right in them; second, that 

even when the stay does not extend to said funds, the case has been stayed by an administrative 

judgment and needs to be modified to allow the Estate to request the withdrawal of said funds. 

WHEREFORE, it is respectfully prayed that an stipulation be reached addressing the issue 

that funds consigned at the state court for just compensation are not part of the bankruptcy estate 

and granting relief from the automatic stay pursuant to 11 U.S.C. §362(d)(1) as to HTA to allow 

the withdrawal of funds in order to terminate the Estate ‘s participation at the state court case. no. 

KEF2011-0244. 

NOTICE: If HTA disagrees with the movant’s request for relief from the automatic 

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stay and/or the FIFTEEN (15) business days Lift Stay Notice Period expires without the parties 

reaching an agreement governing the scope of the relief from the automatic stay, then the movant 

may file a Stay Relief Motion pursuant to the Fourth Amended Case Management Order. 

RESPECTFULLY SUBMITTED. 

In Ponce, Puerto Rico, this 28th of June, 2018. 

 /s/María E. Vicéns Rivera 

 MARĺA E. VICÉNS RIVERA 

USDC- PR 226711 

9140 MARINA ST., SUITE 801 

PONCE, PUERTO RICO 00717 

TEL. / FAX: (787) 259-1999 

 E-mail: mevicens@yahoo.com 

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Exhibit A Page 12 of 14
 EXHIBIT I

 

1 

 Name Percentage of 

participation 

Sucn. Salvador Eduardo 

Mandry Nones 

20.90 

Estrella María Aparicio 

Vázquez 

14.80 

Oscar Adolfo Mandry 

Aparicio 

7.85 

Víctor Robert Fingerhut 

Mandry 

6.80 

Yvelisse Helena 

Fingerhut Mandry 

6.80 

Margaret Ann Fingerhut

Mandry 

6.80 

Salvador Rafael Mandry 

Mercado 

3.320 

Adrián Roberto Mandry 

Mercado 

3.320 

Eduardo José Mandry 

Mercado 

3.320 

Margarita Rosa Mandry 

Mercado 

3.320 

María del C. Amalia 

Mandry Llombart 

3.70 

Selma Verónica Mandry 

Llombart 

3.70 

Juan Carlos Esteva 

Fingerhut 

2.04 

Pedro Miguel Esteva 

Fingerhut 

2.05 

Mariano J. McConnie 

Fingerhut 

2.05 

Janice Marie McConnie 

Fingerhut 

2.04 

Víctor Michael Fingerhut 

Cochran 

2.04 

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 2 

 Name Percentage of 

participation 

Michelle Elaine 

Fingerhut Cochran 

2.05 

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