MAXON ENGINEERING SERVICES INC v. SINDICATO DE CAMIONEROS INC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
IN THE UNITED STATES BANKRUPTCY COURT FOR
THE DISTRICT OF PUERTO RICO
IN RE:
MAXON 	ENGINEERING 	SERVICES,
INC.,
Debtor(s)
Case No. 04-04781 (MCF)
Chapter 7
MAXON 	ENGINEERING 	SERVICES,
INC.,
Plaintiff(s),
v.
SINDICATO DE CAMIONEROS, INC.,
Defendant(s).
Adv. No. 07-00171 (MCF)
OPINION AND ORDER
The debtor, Maxon Engineering Services, Inc. ("Debtor"), filed
a voluntary petition for relief under Chapter 11 of the Bankruptcy
Code on May 4, 2004 (Case No. 04-04781, Docket No. 1). 	On May 24,
2004, Debtor filed its schedules and disclosed those payments made
within 	ninety 	days 	of 	the 	filing 	of 	the 	petition 	(Case 	No. 	04-
04781, Docket No. 40 at pp. 114-135). 	The case was later converted
to a proceeding under Chapter 7 of the Bankruptcy Code on June 13,
2006, and Noreen Wiscovitch-Rentas was appointed as trustee on June
14, 2006 (Case No. 04-04781, Docket No. 1003).
The Chapter 7 trustee filed the instant adversary proceeding
for 	recovery 	of 	certain 	preferential 	payments 	made 	to 	the
defendant, Sindicato de Camioneros, Inc. ("Defendant"), on account
of a prepetition debt on June 11, 2007 (Adv. No. 07-00171, Docket
Case:07-00171-MCF Doc#:51 Filed:11/08/10 Entered:11/08/10 16:22:13 Desc: Main
Document Page 1 of 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No. 1). 	On September 29, 2010, Defendant requested the dismissal
of 	the 	adversary 	proceeding 	alleging 	that 	the 	complaint 	is 	time
barred 	under 	11 	U.S.C. 	§546(a) 	(Adv. 	No. 	07-00171, 	Docket 	No. 	47
and 49). 	The Chapter 7 trustee has not opposed Defendant's motion
to dismiss to date.
Section 	546 	of 	the 	Bankruptcy 	Code 	establishes 	a 	limitation
period on the trustee’s ability to avoid prepetition preferences.
It states that:
(a) 	An action or proceeding under section 544, 545, 547,
548, or 553 of this title may not be commenced after
the earlier of—
(1) the later of—
(A) 2 years after the entry of the order for relief;
or
(B) 1 year after the appointment or election of the
first 	trustee 	under 	section 	702, 	1104, 	1163, 	1202,
or 	1302 	of 	this 	title 	if 	such 	appointment 	or 	such
election occurs before the expiration of the period
specified in subparagraph (A); or
(2) the time the case is closed or dismissed.
11 U.S.C. § 546(a).
Hence, a trustee’s limitation period for exercising avoidance
actions 	for 	prepetition 	preferences 	is 	two 	years 	after 	the 	order
for 	relief 	or 	one 	year 	after 	the 	appointment 	of 	a 	Chapter 	7
trustee, 	if 	the 	trustee 	is 	appointed 	within 	the 	initial 	two 	year
period. 11 U.S.C. § 546(a).
The present adversary proceeding was not filed within the two
years 	after 	the 	entry 	of 	the 	order 	for 	relief. 	Furthermore, 	the
appointment of the Chapter 7 trustee did not occur within the two
years 	after 	the 	entry 	of 	the 	order 	for 	relief. 	As 	such, 	by
utilizing a strict application of the statute of limitations found
Case:07-00171-MCF Doc#:51 Filed:11/08/10 Entered:11/08/10 16:22:13 Desc: Main
Document Page 2 of 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
in 11 U.S.C. § 546(a), the instant action would be time barred.
After 	an 	extensive 	review 	of 	Defendant's 	contentions 	and
independent research performed, the court finds that the opinions
expressed in the case of Maxon Engineering Services, Inc. v. Alex
Hornedo Robles & Assoc., et al, 397 B.R. 228 (Bankr. D.P.R. 2008),
as 	sustained 	in 	Wiscovitch-Rentas 	v. 	Jose 	D. 	Almonte, 	2009 	WL
349360 (D.P.R. 2009), Wiscovitch-Rentas v. Plastic Piping Products
of Puerto Rico, Inc., 2009 WL 393639 (D.P.R. 2009), and Wiscovitch-
Rentas v. Super Roof & General Contractor, 2009 WL 1286406 (D.P.R.
2009), are applicable to the instant case. 	Therefore, this court
adopts 	the 	well-reasoned 	opinion 	of 	Maxon 	Engineering 	Services,
Inc. 	v. 	Alex 	Hornedo 	Robles 	& 	Assoc., 	et 	al 	and 	will 	proceed 	to
dismiss the present adversary proceeding.
WHEREFORE, 	the 	Court 	grants 	Defendant's 	motion 	to 	dismiss
(Adv. No. 07-00171, Docket No. 47 and 49).
SO ORDERED.
In San Juan, Puerto Rico, this 08 day of November, 2010.
Mildred Caban Flores
U. S. Bankruptcy Judge
cc: 	DEBTOR/PLAINTIFF
FAUSTO D GODREAU ZAYAS
US TRUSTEE
SINDICATO DE CAMIONEROS INC
Case:07-00171-MCF Doc#:51 Filed:11/08/10 Entered:11/08/10 16:22:13 Desc: Main
Document Page 3 of 3