Scotiabank de Puerto Rico v. Burgos

2014 | Cited 0 times | First Circuit | January 16, 2014

United States Court of Appeals For the First Circuit No. 12-9005

IN RE: THE PLAZA RESORT AT PALMAS, INC.,

Debtor.

SCOTIABANK DE PUERTO RICO,

Plaintiff, Appellant,

v.

JOSEPH BURGOS; GILDA CRUZ; LETICIA FLORES BERGANZO; NOREEN ORTIZ; ELISELINA ROSARIO; DAVID NIETO CARRERO; LISSETTE VARGAS VALLE; RAFAEL ALMODÓVAR; FRANCISCO SIERRA MÉNDEZ; MARÍA RODRÍGUEZ DE SIERRA; CRUZ A. TORRES COLÓN; PAULITA COLÓN FLORES; ERNESTO BRITO; MARIGLORIA DEL VALLE; CLAUDIO MEDINA; MARÍA ROMERO,

Defendants, Appellees.

APPEAL FROM THE BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT

Before

Torruella, Selya and Lipez, Circuit Judges.

Víctor J. Quiñones, with whom Morell Bauzá Cartagena & Dapena, was on brief for appellant. Gerardo Pavía-Cabanillas, with whom Pavía & Lázaro, PSC, was on brief for appellees Ernesto Brito and Marigloria Del Valle.

January 16, 2014

TORRUELLA, Circuit Judge. The issue to be decided in

this appeal is whether Defendants/Appellees Ernesto Brito and

Marigloria Del Valle have a real property interest in an apartment

that is part of a timeshare real estate venture undergoing Chapter

11 bankruptcy proceedings. At summary judgment, based on the

Puerto Rico Timeshare and Vacation Club Act (the "Timeshare Act" or

the "Act"), P.R. Laws Ann. tit. 31, § 1251, et seq., and the sale

contract between Brito, Del Valle, and the developer of the

timeshare venture (the "Developer"), the bankruptcy court answered

that question in the affirmative.1 The Bankruptcy Appellate Panel

("BAP") affirmed. In disagreement, Plaintiff/Appellant Scotiabank

de Puerto Rico asks us to reverse the bankruptcy court's holding on

the ground that the requirements for creating real property rights

under the Timeshare Act were allegedly never satisfied. After

carefully reviewing the record and the applicable law, we affirm.

I. Background

The chronology of events leading up to this appeal has

been properly delineated by the courts below. See In re Plaza

Resort at Palmas, Inc., 469 B.R. 398 (B.A.P. 1st Cir. 2012); In re

Plaza Resort at Palmas, Inc., Ch. 11 Case No. 09-09980(SEK), Adv.

No. 10-00175 (Bankr. D.P.R. May 4, 2011). We therefore by-pass all

1 In a subsequent opinion and order, the bankruptcy court extended its holding to all other timeshare owners similarly situated. Our holding equally applies to those timeshare owners, although we omit further reference to them for the sake of simplicity.

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incidental details and focus our factual narrative on the

dispositive issues of this appeal, referencing only those facts

that are properly documented in the summary judgment record.

The timeshare regime at the center of this litigation was

constituted on June 1, 2001, through a public deed entitled

"Dedication of Timeshare Regime (The Plaza Resort at Palmas, A Time

Share Regime)" (the "Deed"). According to the Deed, the timeshare

property is located in Humacao, Puerto Rico, and encompasses 25

apartments "for independent use and occupancy" as vacation

residences. The Deed also delineates the terms and conditions

governing the timeshare regime as well as the rights and

obligations of both the Developer and prospective timeshare owners.

The Deed was duly recorded in the Puerto Rico Registry of Property.

Also on June 1, 2001, the Developer granted the Bank and

Trust of Puerto Rico a first mortgage (the "Mortgage") over the

timeshare property to secure payment on a loan obtained to develop

the timeshare regime. R-G Premier Bank of Puerto Rico succeeded

the Bank and Trust of Puerto Rico as the mortgagee. But the FDIC

took over R-G, and Scotiabank became the successor-in-interest and

the holder of the Mortgage. The Mortgage contains the following

subordination clause: "The Mortgagee, without payment, hereby

agrees to subordinate the lien created hereby in favor of the

personal ownership interest of each owner of an accommodation[] or

timeshare . . . so long as such owner remains in good standing with

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respect to his/her obligations under the timeshare plan documents

. . . ." Like the Deed, the Mortgage was duly recorded in the

Registry of Property.

The Developer formally commenced marketing the timeshare

regime around July 2001. Its marketing efforts included the

issuance of a Public Offering Statement explaining to prospective

owners the terms and conditions governing the timeshare regime.

The Offering Statement made plain that "two mortgages encumber[ed]

the real property underlying [the timeshare regime]" and that both

mortgages were subordinated "to the rights of the . . . owner of

any Unit [therein]."2

Approximately a year later, on June 1, 2002, the

Developer, Brito, and Del Valle entered into a purchase agreement

(the "Sale Contract") pursuant to which the Developer transferred

to Brito and Del Valle "a period of ownership . . . of seven (7)

days" in Unit No. F1 of the timeshare regime in exchange for

$18,200. The "period of ownership" -- which was transferred in

perpetuity, free and clear of all encumbrances except taxes and

assessments -- afforded Brito and Del Valle the exclusive right to

use and occupy Unit No. F1 during one week within a revolving

yearly schedule. The Sale Contract also established that Brito and

Del Valle's "period of ownership" required them to be "responsible

2 The holder of the second mortgage was the entity that sold to the Developer the real property dedicated to the timeshare regime.

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for [their] share of any and all costs and expenses incurred in the

operation of the . . . timeshare regime" and to "assume all risks

and liabilities resulting from the use of the property and

facilities [of the timeshare complex]."

Brito and Del Valle appear to have enjoyed their "period

of ownership" over Unit No. F1 without significant impediments

during the first seven years of the Sale Contract. On November 20,

2009, however, the Developer filed for Chapter 11 bankruptcy

protection, and the litigation underlying this appeal eventually

ensued.

In its bankruptcy schedules, the Developer listed Brito

and Del Valle as secured creditors. Brito and Del Valle then filed

a proof of claim asserting a security interest over real property

worth $18,200 and attached the Sale Contract as an exhibit. In

affirming the bankruptcy court's holding, we need not, and do not,

address Brito and Del Valle's claim that they had a security

interest over the timeshare property. Scotiabank answered by

filing an adversary proceeding against Brito and Del Valle.3 Its

complaint sought a declaratory judgment that Brito and Del Valle

did not possess a valid lien over the timeshare property. For

their part, Brito and Del Valle opposed the complaint, and argued,

as an affirmative defense, that Scotiabank's secured interest was

3 The adversary complaint also named several other timeshare owners as defendants. Brito and Del Valle, however, were the only ones who appeared.

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subordinated to their ownership interest pursuant to the

subordination clause of the Mortgage.

After preliminary procedural nuances, Scotiabank moved

for summary judgment, reasserting its contention that Brito and Del

Valle did not have a security interest over the timeshare property.

Scotiabank also advanced the argument presented to us on appeal;

namely, that Brito and Del Valle did not have a real property

interest because the applicable formalities of the Timeshare Act

had not been satisfied. Specifically, Scotiabank argued that "when

timeshare rights are created as real property rights [under the

Timeshare Act], the transfer or sale of said rights may only take

place through the execution and recordation of a public deed."4

Because neither of those formalities had been followed, Scotiabank

reasoned, the Sale Contract only afforded Brito and Del Valle the

right to use and occupy Unit No. F1 during the so-called period of

ownership.

Brito and Del Valle opposed and crossed-moved for summary

judgment, arguing that the Sale Contract made plain that they were

4 Scotiabank also underscored other formalities allegedly required in connection with the recordation process. Moreover, although it recognized being bound by the subordination clause, Scotiabank alleged that this clause merely protected the contract rights (rather than the real property rights) granted to Brito and Del Valle. Scotiabank made these same arguments to the BAP and repeats them before this court. Nevertheless, in light of our holding, there is no need for us to pass upon them.

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acquiring a real property interest over Unit No. F1. They further

averred that (1) the Deed and the Mortgage expressly provided that

Scotiabank was subordinated to their ownership interest and (2)

both documents had been duly recorded, so that the protections of

the Timeshare Act had come into play. Lastly, Brito and Del Valle

claimed that they had acquired a statutory lien over the timeshare

property as soon as the protections of the Timeshare Act kicked in.

The bankruptcy court granted Brito and Del Valle's cross-motion.

In so doing, it first held that the subordination clause of the

Mortgage unequivocally established the mortgagee's agreement to

subordinate its lien in favor of the ownership interest of the

timeshare owners, "irrespective of whether the accommodation or

time share is of the type coupled with special property rights or

not." In re Plaza Resort at Palmas, Inc., Ch. 11 Case No. 09-

09980(SEK), Adv. No. 10-00175, slip op. at 9. For that reason, the

court noted, "the issue is not whether the purchasers obtained a

security interest by virtue of their agreements with [the

Developer] or by operation of law. Their interest is protected by

. . . virtue of the subordination agreement itself." Id.

The court next examined the terms of the Deed, the

Offering Statement, and the Sale Contract to establish the extent

of the parties' bargain. Id. at 10. In determining that they had

agreed to transfer and obtain a real property interest in Unit

No. F1, the court stated:

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[I]t is clear from the documents, taken as a whole, that [the Developer] intended to transfer interests in real property to the purchasers and that the purchasers intended to acquire an interest in real property. The purchase contracts clearly evince a sale of the timeshare interests, with title to unit weeks being free and clear of all encumbrances except taxes and assessments. Title was also transferred in perpetuity, unlike a right to use interest that grants a contractual right to use a vacation facility for a specified number of years.

Id. The court acknowledged the fact that the Sale Contract had

neither been formalized into a public deed5 nor presented for

recordation at the Puerto Rico Registry of Property. Id. The

court, however, impliedly discarded Scotiabank's argument that the

Timeshare Act required such formalities for the creation of real

property rights, underscoring two general principles of Puerto Rico

law: (1) that "property rights are acquired and transmitted[, inter

alia,] . . . in consequence of certain contracts"; and (2) that the

Puerto Rico "[R]egistry [of Property] does not give or take away

rights." Id. (citing, respectively, P.R. Laws Ann. tit. 31, § 1931;

5 A public deed in the Civil Law tradition, is a public document that describes a legal transaction, composed by a "notary [who] shall write regarding the contract or act submitted for his authorization signed by the grantors . . . signed, marked, and flourished by the notary himself." P.R. Laws. Ann. tit. 4, § 2031. The notary has the power to attest as to the authenticity of the contents of all public documents he or she authors. P.R. Laws Ann. tit. 4, § 2002. Though a public document is required for the creation of certain legal instruments, such as trusts, P.R. Laws Ann. tit. 31, § 2543, and mortgages, P.R. Laws Ann. tit. 30, § 2607, it is not required for the conveyance of real property interests.

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and P.R. Prod. Credit Assoc. v. Registrador, 23 P.R. Offic. Trans.

213 (1989)).

Scotiabank appealed to the BAP, which affirmed the

bankruptcy court on all fronts. This appeal immediately followed.

II. Discussion

Federal Rule of Civil Procedure 56, applicable in

bankruptcy through Bankruptcy Rule 7056, was the procedural vessel

that gave rise to this appeal. Our inquiry therefore seeks to

answer whether the moving party is entitled to judgment as a matter

of law. Estate of Hevia v. Portrio Corp., 602 F.3d 34 , 40 (1st

Cir. 2010). At this juncture, we review the record de novo, in the

light most favorable to the nonmoving party, drawing all reasonable

inferences in its favor. Id. Being plenary, our review need not

follow the rationale espoused by the lower court, and we may affirm

"the grant of summary judgment on any basis that is manifest in the

record." Johan G. Danielson, Inc. v. Winchester-Conant Props.

Inc., 322 F.3d 26 , 37 (1st Cir. 2003).

As stated above, Scotiabank's challenge to the bankruptcy

court's holding centers on the formalities that the Timeshare Act

allegedly requires for the creation of individual real property

rights. Our inquiry therefore seeks to determine whether those

formalities are indeed encompassed within the Act. Generally, "we

look to the pronouncements of a state's highest court in order to

discern the contours of that state's law." González-Figueroa v.

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J.C. Penney P.R., Inc., 568 F.3d 313 , 318 (1st Cir. 2009) (citing

Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48 ,

51 (1st Cir. 2008)). Where, as here, on-point authority from the

highest state court is unavailable, however, "our task is to

vaticinate how that court likely would decide the issue." Id. For

this endeavor we employ "the same method and approach that the

state's highest court would use." IMS Health v. Ayotte, 550 F.3d

42 , 61 (1st Cir. 2008).

Statutory construction in Puerto Rico begins with the

text of the underlying statute, and ends there as well if the text

is unambiguous. In this respect, the Puerto Rico Civil Code tells

us that "when a law is clear and free from all ambiguity, the

letter of the same shall not be disregarded, under the pretext of

fulfilling the spirit thereof." P.R. Laws Ann. tit. 31, § 14; see

also, e.g., Warner Lambert Co. v. Tribunal Superior, 1 P.R. Offic.

Trans. 527, 559 (1973) ("No ambiguity in the letter of the law nor

doubts about the legislative intention exist. To enlarge by

judicial construction the definition of just cause, as suggested by

the intervener, would be tantamount to subverting the true sense

and purpose of the statute."). Here, we find no ambiguity in the

provisions of the Timeshare Act that Scotiabank relies upon, and,

in keeping with Puerto Rico's hermeneutic rules, we look no further

than the text of those provisions. Before delving into the merits

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of Scotiabank's contentions, however, brief contextual remarks

about the Act are in order.

Enacted in 1995, the Timeshare Act is a comprehensive

piece of legislation which constitutes "the sole and exclusive law

of Puerto Rico governing the creation and disposition of

accommodations, timeshares and vacation club rights." P.R. Laws

Ann. tit. 31, § 1269. The statement of purpose and scope of the

Timeshare Act unequivocally establish its place of prominence

within Puerto Rico's economic legislation: "th[e] [timesharing]

segment of the tourism industry continues to grow, both in volume

of sales and in complexity and variety of product structure;

[accordingly] . . . a uniform and consistent method of regulation

is necessary in order to safeguard Puerto Rico's tourism industry,

Puerto Rico's consumers and Puerto Rico's economic well-being."

Id. § 1251.

To effectuate its purpose, the Timeshare Act sets forth

a number of formalities that a timeshare developer must follow when

establishing a timeshare regime. The process starts with a

timesharing permit application filed with the Puerto Rico Tourism

Company (the "Company"), providing specific information about the

developer, the timeshare property, and the timeshare plan. Id.

§§ 1252a - 1252e. If the Company grants the timeshare permit, the

developer must establish the so-called timeshare regime through the

issuance and recordation of a public deed. Id. § 1252a. "The deed

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. . . shall . . . clearly and precisely state the use to which all

the area included in the real property and dedicated to the regime

shall be devoted . . . ." Id. § 1262.6 Moreover, "[o]nce

dedicated, the timeshare . . . regime may only be modified or

terminated with the express conformity of the Company . . . ." Id.

The Act affords several safeguards to prospective and

actual timeshare owners. For example, the developer is required to

provide prospective owners with an offering statement delineating

the terms and conditions that would govern a possible purchase as

well as the rights and obligations that would arise once a purchase

is closed. Id. §§ 1255-1255d. Furthermore, upon closing, a

timeshare owner is automatically protected against certain liens

and encumbrances inasmuch as the Act requires all lienholders with

an interest in the timeshare property to "execute[] and record[]

among the appropriate public records . . . a subordination

agreement" recognizing the superior rights of timeshare owners.

Id. § 1254. Such protection is "effective against the subordinating

lienholder's successors and assigns and any other person who

6 The public deed must also include specific and general information about the timeshare regime, including, among other things, (1) a description of each accommodation as well as a description of the facilities of the property; (2) the term of the timeshare regime; (3) the area of all the accommodations in the property and area of each accommodation; (4) the share of each accommodation in the corresponding common facilities; and (5) a description of the entity that will manage the regime as well as the duties, responsibilities, and obligations of the same. P.R. Laws Ann. tit. 31, § 1264.

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acquires the accommodation . . . through foreclosure, by deed in

lieu of foreclosure or by any other legal means . . . ." Id. §

1262a-1.

Scotiabank does not dispute that a timeshare regime and

a binding subordination agreement are in place. Scotiabank instead

urges us to focus our sight on the type of rights available to

Brito and Del Valle under the timeshare regime. Section 1252a of

the Act provides a developer of a timeshare regime with the option

to confer to timeshare owners either (1) "a contractual right to

use and occupy an accommodation," or (2) "a special type of

property right with respect to a particular accommodation . . . ."

Id. § 1251a. According to Scotiabank, certain formalities must be

followed when the developer's intention is to confer special real

property rights. In particular, Scotiabank points to §§ 1262a and

1264a,7 which it cites to support its live-or-die proposition that

"when a timeshare regime is created to confer real property rights,

the transfer or sale of said rights may only take place through the

execution and recordation of a public deed." That proposition,

however, finds no support in the plain text of §§ 1262a and 1264a.

In pertinent part, § 1262a establishes that "[o]nce the

property is dedicated to the timeshare . . . regime . . . the

accommodations, may be . . . the object of . . . all types of

7 Sections 1262a and 1264a only apply if the timeshare developer has structured the timeshare regime to confer special real property rights. P.R. Laws Ann. tit. 31, § 1262.

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juridic[al] acts . . . and the corresponding titles may be recorded

in the Registry of Property . . . ." (emphasis supplied). Section

1264a, in turn, establishes that

[t]he deed of transfer of each individual accommodation shall state [particular information about] the accommodation concerned and, also, the share pertaining to said accommodation in the facilities. Furthermore, said deed of transfer shall contain a warning . . . stating that the accommodation being transferred pursuant to such deed is not subject to the . . . Horizontal Property Act of Puerto Rico8 . . . [or] the protective measures afforded [therein] . . . .

To discard Scotiabank's contentions, we need go no

further than the "may be recorded" phrase in § 1262a. That phrase

unambiguously indicates that recordation of special real property

rights is an option, not an obligation. See, e.g., Blatt & Udell

v. Core Cell, 10 P.R. Offic. Trans. 179 (1980) (noting that the

verb "may" generally denotes discretion rather than a mandate); see

also López v. Davis, 531 U.S. 230 , 240 (1997) (noting that the

legislative use of the word "may" generally indicates a grant of

discretion); Raselli v. Warden, Metro. Corr. Ctr., 782 F.2d 17 ,

23 (2d Cir. 1986) ("The use of a permissive verb -- 'may review'

instead of 'shall review' -- suggests a discretionary rather than

8 The Horizontal Property Act, now known as the Condominium Act, P.R. Laws Ann. tit. 31, § 1291, et seq., provides a regime, and organization requirements pertaining typically to condominiums and multi unit residential developments.

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mandatory review process.")9. Furthermore, the Act uses the same

"may be recorded" phrase when referencing the individual timeshare

rights that can access the Registry -- "[The timeshare[] . . .

rights which may be recorded . . . ." P.R. Laws Ann. tit. 31,

§ 1265a (emphasis supplied). There can hardly be a clearer

indication that recordation is not required for the creation of

individual real property rights. See Pueblo de P.R. v. Hernández-

Maldonado, 1991 P.R.-Eng. 735, 865, P.R. Offic. Trans. (1991)

("Statutes should be treated as a harmonious whole, and should be

read together and not construed as divorced from their

provisions.") (internal quotations omitted); see also Ratzlaf v.

United States, 510 U.S. 135 , 143 (1994) ("A term appearing in

several places in a statutory text is generally read the same way

each time it appears."). Although our analysis could very well end

here, see P.R. Laws Ann. tit. 31, § 14, there are at least two

other reasons why Scotiabank misses the mark.

The first reason is that, rather than acknowledging the

permissive nature of § 1262a's language, much less attempting to

9 The "may be recorded" phrase became part of § 1262a in 1999 as one of a number of amendments introduced into the statute that year. 1999 P.R. Laws 003 (amending 1995 P.R. Laws 252). The new language replaced the phrase "shall be recordable." Unfortunately, the specific reasons behind the change in § 1262a are not ascertainable, as there appears to be no legislative history or interpretative commentary in this regard. We, however, see no reason to interpret the amendment as anything other than an attempt to clarify that recordation is not a conditio sine qua non under § 1262a by jettisoning from its text the mandatory verb "shall" and replacing it with the permissive, "may."

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reconcile the obvious tension between that language and its

contentions, Scotiabank disingenuously rests its case entirely on

the one-sentence, perfunctory proposition previously quoted. We

routinely discard lackluster efforts of that sort. See, e.g.,

United States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990) ("[T]he

settled appellate rule [is] that issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

The second reason is premised on the oft-quoted maxim of

statutory interpretation expressio unius est exclusio alterius,

which tells us that when a legislature "includes particular

language in one section of a statute but omits it in another . . .

it is generally presumed that [the legislature] acts intentionally

and purposely in the disparate inclusion or exclusion." Russello

v. United States, 464 U.S. 16 , 23 (1983)(internal quotation marks

and citations omitted). Here, the Timeshare Act, when so required,

unequivocally establishes the specific formalities a given document

must follow. For instance, § 1251a expressly and unequivocally

establishes that the timeshare regime comes into being only after

both the issuance of a public deed and recordation. The same

expressed mandate is contained in many other sections of the Act.

See P.R. Laws Ann. tit. 31, §§ 1254, 1264, 1264a, 1266e.

Accordingly, the fact that § 1262a nowhere mentions "publication"

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or "recordation" as requisite formalities forecloses Scotiabank's

contentions.

Section 1264a does not provide Scotiabank any more

support. That section sets forth some of the specifics that a deed

of transfer must include, and, in so doing, arguably requires the

execution of such a document when formalizing the transfer of

individual timeshare rights. Section 1264a, however, nowhere

requires that the "deed of transfer" be embodied in any particular

form. Neither does it require that it be formalized into a public

deed, nor that it be recorded (which, of course, would contradict

the "may be recorded" language of §§ 1262a and 1265a). Moreover,

the term "deed of transfer" is not defined in the section

containing the terms of art of the Act, and Scotiabank has failed

to provide us with any applicable authority ascribing a specific

meaning to such a phrase. We therefore fail to see why or how

Scotiabank reads the terms "public deed" and "recordation" into

section § 1264a. The fact that Scotiabank cites § 1264a without

articulating a single word to explain why this provision is

controlling, does nothing to advance its cause.

The dissent would have us draw another theory from

Scotiabank's appeal, though admittedly not without a generous

reading. Throughout its brief, Scotiabank mentions repeatedly that

the Deed created only personal contractual rights. One might

construe this blanket assertion as a hint of a challenge to the

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bankruptcy court's conclusion that the rights conveyed to Brito and

Del Valle by way of the Deed are real property rights. The dissent

recites Scotiabank's empty proclamation, as proof that such an

argument has been preserved. As the catalogue provided by our

brother in the appendix shows however, Scotiabank's litany amounts

to little more than a conclusory assertion with essentially no

explanation or support provided. A mere passing reference on the

part of Scotiabank, however many times repeated, does not amount to

an argument that commands our attention. Zannino, 895 F.2d at 17.

The dissent even cites to specific sections of the Deed as well as

the Public Offering Statement, in an attempt to construct the

contract rights argument, an endeavor entirely foregone by

Scotiabank. Accordingly, we decline to afford a sophisticated

plaintiff an argument it has not made or elaborated, and that the

opposing litigant has had no opportunity to address. Landrau-

Romero v. Banco Popular de P.R., 212 F.3d 607 , 616 (1st Cir. 2000)

("It is well settled that arguments not raised in an appellant's

initial brief are waived." (citations omitted)).

In any event the argument, if there is one, fails.

Perusal of the Deed reveals it is far from enlightening, and at

best ambiguous as to the nature of the rights in question. Though

Section V of the Deed states that an "Accommodation Unit" is

submitted to the timeshare regime via a contract that grants the

buyer the right to use and occupy the unit, Section II defines

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"Accommodation Unit" as a "Unit." "Unit" is in turn defined as

"that part of the Timeshare Property which is subject to ownership

by one or more persons." (emphasis supplied). The Deed defines

"Timeshare Property" as "The Parcel together with the concrete

buildings and other improvements constructed thereon, any easements

and other rights appurtenant to such buildings and improvements and

any personal property located thereon intended for the use

specified in the next paragraph hereof, now existing or hereafter

acquired." (emphasis supplied). The Deed incontrovertibly defines

"Parcel" as real property: "certain parcel of land located in

Humacao, Puerto Rico" that "is recorded in the Registry at page 197

of volume 382 of Humacao, property number 16,851." Because

"Timeshare Property" is defined as specific real property, a "Unit"

and, therefore, an "Accommodation Unit," seem to mean real property

that has been submitted to the timeshare regime for ownership.

Further, the definition of the term "Unit" also establishes the

rights that are conveyed by way of the contract to use and occupy,

referred to in Section V; the contract to use and occupy conveys a

"Unit Week" on an "Unit." Yet another defined term, "Unit Week" is

equivalent to a "period of ownership in an Unit." (emphasis

supplied). Further examination of the Deed only complicates the

inquiry. Therefore, Scotiabank's unsubstantiated assertions as to

the Deed's lucidity are clearly wrong.

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Our brother rejects our take on the Deed as, at most,

ambiguous, and points to other language that, according to the

dissent, makes clear that the Deed grants contract rights.

Respectfully, this view seems to ignore the language of the Deed

that we quote above regarding the definition of a "Unit" and

"Timeshare Property," and the, at best, ambiguous nature of the

Deed. The dissent also dismisses, though the bankruptcy court did

not, that the Deed provides for the "Units" to be transferred "free

and clear of all encumbrances" and in perpetuity. These are rarely

the features of a contract right, but rather are traits usually

reserved for transfers of title to real property. That the lower

court's take on the matter is contrary to that of the dissent is

alone quite telling of the Deed's, at best, ambiguous nature.

In any event, we need not continue down the path of

hermeneutics. Scotiabank, marshals no substantial challenge here

on appeal to the bankruptcy court's reasoning and findings. We

thus leave undisturbed the bankruptcy court's analysis, and its

conclusion, that the timeshare holders wield real property rights.

Landrau-Romero, 212 F.3d at 616.

Notwithstanding Scotiabank's failure to challenge, on

appeal the bankruptcy court's findings regarding the parties'

intent and the timeshare documents, the dissent would embark us on

a flight of fancy to consider extrinsic evidence as to the parties'

state of mind. Our brother apparently fails to note that

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Scotiabank not only failed to make such an argument, but also

explicitly stated in its brief before us that resorting to the

parties' intent is inapposite.10 Nevertheless, the dissent insists

that we look to the Public Offering Statement and Sale Contract to

address an issue specifically renounced by Scotiabank. We briefly

brush this orphaned contention, arguendo.

As to the Public Offering Statement, our dissenting

colleague "focuses with laser-like intensity" indeed, on the phrase

"contractual ownership interests" for the proposition that the

timeshare regime was meant to be contractual. However, the Public

Offering Statement also provides that "[t]he Timeshare Interests

will be sold to Purchasers pursuant to a Purchase Contract between

the Purchaser and the Developer." Accordingly, "Contractual

ownership interests" could reasonably mean those real property

ownership interests specified in, and sold by way of, the Sale

Contract.

As to the Sale Contract, the dissent, but not Scotiabank,

purportedly identifies two leads in favor of the contract rights

theory. First, that the agreement requires the buyer to pay for

the filing fees necessary to perfect a security interest over a

purchased timeshare unit, in favor of a specific lender identified

as Banco Financiero de Puerto Rico. This lender apparently offered

to provide financing to buyers, and required a security interest

10 Appellant's Br. at 19.

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over the sold units as collateral in consideration for credit. The

dissent's theory follows, that since under Puerto Rico law security

interests over real property are perfected via recordation in the

Registry of Property, and not through UCC filings, this points to

the parties' belief that they bargained for contract rights only.

Particularly damning to this proposition is that the

record is devoid of any indication that any party here even

attempted to perfect a security interest. Furthermore, and to say

nothing of the inferential leap required of this imaginary peek

into the mind of a buyer, this theory rests on the assumption that

the appellees here sought financing as provided in the Sale

Contract. And though the Sale Contract between the parties hints

that the brunt of the purchase price would be financed, the

agreement also requires that loan documents to that effect be

submitted with the Sale Contract. Yet there are no loan documents

before us, nor anything else in the record, that allow such an

assumption. Moreover, our colleague's theory rests on yet another

assumption; that the UCC filing regime's exceptions apply under the

Timeshare Act. The problem with this assumption is that the

Timeshare Act nowhere states as much, and Puerto Rico courts have

thus far remained silent on the matter. Normally, when presented

with unanswered inquiries of state law we endeavor to resolve

matters as best we can surmise the state court would. Hatch v.

Trail King Indus., Inc., 699 F.3d 38 , 46 (1st Cir. 2012). The

-22-

question here is particularly nuanced, given that the Timeshare Act

expressly creates a "special type of property right." P.R. Laws

Ann. tit. 31, § 1251a. However, we again decline to attempt to

answer it on a barren record, where neither party has briefed the

issue, nor have the courts below addressed it. See Landrau-Romero,

212 F.3d at 616. More is needed indeed.

Second, the dissent points to the Sale Contract's

purported failure to describe the timeshare units in the detailed

manner required by § 1264a and § 1264(1)(b) of the Timeshare Act

for real estate conveyances. However, the Sale Contract expressly

states, "[t]he terms used in this Contract shall have the same

meaning as the identical terms utilized in the Deed (defined below)

for this timeshare Plan (define[d] below) unless such terms are

otherwise define[d] herein." Each Sale Contract specifies a Unit

No., and the Deed describes the Unit corresponding to each Unit No.

in every bit of detail required by the Timeshare Act. Therefore,

the Sale Contract complies with the Timeshare Act by expressly

incorporating these meanings from the Deed.11

11 The dissent also contends that the appellees' failure to record their real property interest in the Property Registry, is yet another omen that the parties intended to transfer contractual and not real property rights. On that point, elsewhere in our opinion we have already discussed that the permissive language of §§ 1262a and 1265a of the Timeshare Act makes clear that recordation of timeshare property interests is not mandatory. The dissent itself agrees that it "is both true and uncontroversial" that "recordation of purchase agreements at the Registry of Property is not an absolute requirement for the creation of a real property timeshare regime." Furthermore, and as the bankruptcy court duly noted, it

-23-

In any event, we reiterate our steadfast opposition to

addressing documents not alluded to by Scotiabank, in light of

arguments not forwarded by it either. Landrau-Romero, 212 F.3d at

616. The bankruptcy court's finding that the timeshare regime

transferred real property rights, as well as the factual findings

regarding the parties' intent, went unchallenged and are foreclosed

from our review.

As our dissenting colleague cogently points out, the

appellants' purported arguments were "awkwardly developed in some

respects and did not always highlight the most telling aspects of

the relevant documents," which "evinces sloppy lawyering."

Nevertheless, according to his view, we are required to undertake

"some independent inquiry," because the appellants "did enough, if

barely, to preserve [the real property issue] for review." This,

of course, is a degree of benevolence not normally offered by a

court to a party in our adversarial system, particularly when

dealing with one that hardly classifies as an indigent pro se

litigant, or is lacking competent legal representation. Eureka

Broadband Corp. v. Wentworth Leasing Corp., 400 F.3d 62 , 70 (1st

Cir. 2005). Accordingly, though we should not have to address our

is an axiomatic principle of Puerto Rico law that the Property Registry "does not give or take away rights." P.R. Prod. Credit Assoc. v. Registrador, 123 P.R. 231, 237-38 (1941), 23 P.R. Offic. Trans. 213 (1989). Therefore, the appellees' failure to record their real property interest, though perhaps unwise on their part, is far from the smoking gun the dissent purports it to be.

-24-

brother's remaining thoughts on this matter, we are particularly

concerned with the issues raised by the dissent regarding the

specific treatment given to timeshare buyers by the Bankruptcy Code

pursuant to 11 U.S.C. §§ 101 (53D), 365(h)-(j). It is most telling

that the dissent concludes that "there are no findings" by the

prior courts that dealt with these provisions. The likely reason

for that, is that there is no mention of § 101 (53D) to be found

anywhere in the record, and § 365(h)-(j) was not addressed by

either party in the bankruptcy court. Courts do not usually make

findings on issues not raised before them.

The long and short of it is that the Timeshare Act

unambiguously provides that neither publication nor recordation is

a conditio sine qua non for the creation of individual real

property rights. Accordingly, the bankruptcy court correctly

endeavored to determine whether the parties had intended to create

real property rights with their bargain. Scotiabank failed to

challenge on appeal the bankruptcy court's finding regarding the

intention of the parties as to the creation and transfer of real

property interests. Thus, the bankruptcy court's conclusions are

entitled to remain unaltered. Landrau-Romero, 212 F.3d at 616.

Scotiabank failed to challenge the court's interpretation of the

documents underlying the parties' agreement, and rather pinned its

appeal only on a flawed interpretation of the Timeshare Act. The

result of that strategy is now binding on Scotiabank.

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III. Conclusion

If presented with the record before us, we are confident

that the Puerto Rico Supreme Court would arrive at the same

conclusions we reach today. The bankruptcy court's judgment is

therefore affirmed.

Affirmed.

"Dissenting opinion follows"

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SELYA, Circuit Judge (dissenting). The majority focuses

with laser-like intensity on the question of whether the intervals

purchased by the timeshare buyers in this case constitute real

property as opposed to purely contractual interests. After

deciding that those intervals comprise real property, the majority

then washes its hands of the matter.

In my view, the majority incorrectly answers the question

that it poses. Equally as important, this question — no matter how

it is answered — is not dispositive of the broader question of the

parties' rights in bankruptcy. For both of these reasons, I

respectfully dissent.

The scene is easily set. As the majority concedes, the

Timeshare Act allows a developer to choose between creating a

timeshare regime in which purchased intervals (Units) are either

contractual in nature or comprise "a special type of property

right." P.R. Laws Ann. tit. 31, § 1251a.

The majority rests its real property conclusion on two

primary foundations. First, it argues that recordation of purchase

agreements at the Registry of Property is not an absolute

requirement for the creation of a real property timeshare regime.

Ante at 14-17. That fact is both true and uncontroversial — but

simply because a developer can do something does not mean that this

developer followed such a course. The majority pays no heed to

this second step, noting ambiguity in the dedication deed and then

-27-

resting on conclusions of the bankruptcy court (conveniently

deeming them unchallenged).

But I cannot accept the majority's ipse dixit that the

appellant is foreclosed from arguing that the timeshare regime is

structured to convey wholly contractual rights. This argument has

been a mainstay of the appellant's case throughout the tortuous

course of this litigation. As the majority itself concedes, the

argument is "mention[ed] repeatedly" in the appellant's brief.

Ante at 17. Indeed, the appellant spotlights this issue in the

very first sentence of its argument summary, designates it as a

controverted issue on appeal, and refers to it many times in the

body of its brief.12

Nor was the argument waived below. The appellant raised

it before both the Bankruptcy Appellate Panel and the bankruptcy

court (and both of those tribunals acknowledged as much). See In

re Plaza Resort at Palmas, Inc., 469 B.R. 398 , 404-05 (B.A.P. 1st

Cir. 2012); In re Plaza Resort at Palmas, Inc., Ch. 11 Case No. 09-

09980, Adv. No. 10-00175, slip op. at 5 (Bankr. D.P.R. May 4,

2011); see also Appendix A. To the extent that the bankruptcy

court found the timeshare interests to be real property, see ante

12 I enumerate some examples in Appendix A. In the same appendix, I likewise list examples of similar arguments pressed by the appellant before the Bankruptcy Appellate Panel and the bankruptcy court.

-28-

at 20, the appellant preserved the question by continuing to press

the point to the Bankruptcy Appellate Panel and now to us.

In an effort to detour around this well-documented trail,

the majority questions whether the appellant has developed its

argument with sufficient meticulousness. In framing this question,

however, the majority sets the bar too high.13

It is true, of course, that an argument "adverted to in

a perfunctory manner" is waived. United States v. Zannino, 895

F.2d 1 , 17 (1st Cir. 1990). This rule of practice, however, does

not require that arguments be precise to the point of pedantry.

Where, as here, an issue has been squarely advanced, an appellate

court can — and in the interests of justice should — "go beyond the

reasons . . . articulated in the parties' briefs to reach a result

supported by law." United States v. One Urban Lot Located at 1 St.

A-1, 885 F.2d 994 , 1001 (1st Cir. 1989) (emphasis in original).

The Supreme Court has made this point with conspicuous clarity:

"[w]hen an issue or claim is properly before the court, the court

is not limited to the particular legal theories advanced by the

parties, but rather retains the independent power to identify and

apply the proper construction of governing law." Kamen v. Kemper

Fin. Servs., Inc., 500 U.S. 90 , 99 (1991). The inquiry, then,

13 This attempt to evade the issue is particularly ironic because the majority relies on an interpretation of the Timeshare Act, see ante at 14-17, that the appellees have never mentioned at any stage of this litigation.

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inevitably turns on the level of specificity that a court should

require in order to deem an argument preserved.

In this case, the appellant has surpassed the requisite

level of specificity. It advanced its contractual rights argument

plainly, prominently, and persistently. Even the majority

acknowledges that this argument presents the principal issue to be

decided on appeal. See ante at 2.

To be sure, the contractual rights argument was awkwardly

developed in some respects and did not always highlight the most

telling aspects of the relevant documents. But an argument is not

waived merely because it is inartfully crafted. See, e.g., United

States v. Dunbar, 553 F.3d 48 , 63 n.4 (1st Cir. 2009) (treating

issue as preserved even though the "brief does not state [the]

claim artfully"); Michelson v. Digital Fin. Servs., 167 F.3d 715 ,

719-20 (1st Cir. 1999) (similar). What counts is that the

appellant hinged its argument to the framework of the timeshare

regime. That it did not parse each and every document evinces

sloppy lawyering, but that failure, without more, does not produce

a waiver. The documents are in the record, and an inquiring court

must be expected to carry out some independent inquiry.

Viewed against this backdrop, it is obvious to me that

the issue is properly before this court. The appellant did enough,

if barely, to preserve it for review. We are, therefore, duty-

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bound to resolve the issue based on the record and the governing

law.

This brings me to the meat of the appeal. The timeshare

documents, read in light of the Timeshare Act, demonstrate that the

parties purposed to transfer contractual interests, not real

property. The Timeshare Act, which provides that the nature of the

interests to be conveyed is at the "option of the declarer," puts

the dedication deed (the Deed) at the center of this inquiry. P.R.

Laws Ann. tit. 31, § 1251a.

Although the Deed will not win any prize for legal

writing, it firmly supports the conclusion that the interests

conveyed are contractual. I describe some salient features:

C Section V of the Deed is titled "Specific Timeshare

Rights in Timeshare. (Contractual Interests in Unit

Weeks and Appurtenant Rights)."

C The same section speaks of execution of a "contract of

right to use and occupy," through which the developer

will grant "the contractual right to use and occupy."

C The Deed definitions call for "Units" to be committed to

the regime upon the execution of "contract[s] of right to

use and occupy."

Given this straightforward language, I disagree with the majority's

characterization of the Deed as "ambiguous." Ante at 18. To the

exact contrary, it describes the contractual nature of the regime

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in terms that closely track section 1251a of the Timeshare Act.

See P.R. Ann. tit. 31, § 1251a (describing "[a] contractual right

to use and occupy").

Even if the Deed were ambiguous on this point, extrinsic

evidence would then become relevant to an ensuing inquiry into the

parties' intentions. See Smart v. Gillette Co. LTD Plan, 70 F.3d

173 , 178 (1st Cir. 1995) (describing appropriate uses of extrinsic

evidence to aid interpretation of ambiguous contract). As this

case was decided below at summary judgment, our review is de novo.

The public offering statement and the purchase-and-sale agreement

are key pieces of extrinsic evidence in the summary judgment record

— and our inspection of these documents confirms that these

timeshare interests are contractual.

Under the Timeshare Act, a public offering statement must

be approved by the Puerto Rico Tourism Company and presented to

every prospective buyer prior to any purchase of a Unit. P.R. Laws

Ann. tit. 31, § 1255. The public offering statement for this

development is part of the record, as are the appellees'

representations that they received, reviewed, and fully understood

it. Consequently, the public offering statement is a prime source

of extrinsic evidence here.

This statement leaves no doubt but that the timeshare

regime was meant to be contractual. It provides unequivocally that

"[u]nder the timeshare regime, contractual ownership interests will

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be sold to the Purchasers." It goes on to say that the owners will

be given "the exclusive use and occupancy" of certain Units by

means of "contractual ownership interests." To cinch matters, it

defines "Timeshare Interest" and "Unit Week" as "the timeshare

contractual ownership interest in the Plaza Resort owned by the

Owner, which timeshare contractual ownership interest gives the

Owner the exclusive use and occupancy of" a certain Unit. Read in

its entirety, the public offering statement furnishes

incontrovertible evidence of the developer's intent to create and

transfer contractual rights.

If more is needed, the timeshare interests here were

conveyed by a purchase-and-sale agreement (the Sale Contract)

tailored to this timeshare regime. The Sale Contract quite clearly

indicates that the parties intended to transfer and receive

contractual interests. For example, the developer facilitated bank

financing for purchasers, and the Sale Contract requires the

purchasers to pay the "fees relating to the UCC filing to perfect

the security interest" of the lender in their Units. Whether or

not these buyers actually availed themselves of this financing

arrangement, this provision is material because, under applicable

Puerto Rico law,14 security interests in real property are perfected

14 Puerto Rico recently revised its version of the UCC. See Puerto Rico Act No. 21 of Jan. 17, 2012. Those revisions, not yet codified, do not apply to the matters at issue here. Accordingly, an explication of them would serve no useful purpose.

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through recording in the Registry of Property, see P.R. Laws Ann.

tit. 30, § 2577, not through UCC filings, see id. tit. 19,

§ 2004(j) (excluding real property interests from scope of UCC

filing regime). Seen in this light, it is evident that the

appellees did not consider the purchase of their Unit to be a real-

estate transaction.

The Sale Contract supplies yet another clue that the

parties meant to make the transferred ownership contractual in

nature. Section 1264a of the Timeshare Act applies only to real

property timeshare regimes. See id. tit. 31, § 1262. Although the

majority is correct in noting that this provision does not

explicitly require the instrument of transfer to "be embodied in

any particular form," ante at 17, it does demand that, as a real-

estate conveyance, the instrument include "the particulars

prescribed in [section] 1264(1)(b)." P.R. Laws Ann. tit. 31,

§ 1264a. In turn, section 1264(1)(b) requires a description of the

Unit, including "its measures, location, rooms," and other specific

details. Id. § 1264(1)(b).

Here, the Sale Contract — which did not contain this

information — constituted the instrument of transfer. It would

seem, therefore, that the Sale Contract was incapable of conveying

an interest in real property.

The majority's riposte stems from a pro forma declaration

that terms used in the contract shall have the same meaning as

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identical terms used in the Deed. From this single sentence, the

majority extravagantly concludes that the Sale Contract complies

with section 1264a. Ante at 23. I think that this conclusion is

overly optimistic and, in all events, it would be highly unusual

for parties to draft a real estate conveyance that omitted a

meaningful legal description of the property conveyed. At the very

least, such a glaring omission would make any fair-minded observer

skeptical of whether the parties intended to transfer real property

at all.

This powerful array of documentary evidence is not

diminished by the majority's reliance on the use of words like

"owner" and "ownership" in the Deed. See, e.g., ante at 19. The

Timeshare Act defines the term "owner" in a manner that reaches

timeshare buyers under both contractual and real property regimes.

See P.R. Laws Ann. tit. 31, § 1251b(25) (defining "owner").

Moreover, the concept of "ownership" applies naturally to both

contractual interests and real property interests — and the former

reading is a superior fit for the language of the Deed and other

transaction documents. If this were not the case, phrases like

"contractual ownership interest" would make no sense.

Much the same is true of the bankruptcy court's emphasis

on the phrase "free and clear of all encumbrances" and the fact

that the granted rights run in perpetuity. See In re Plaza Resort

at Palmas, Inc., Ch. 11 Case No. 09-09980 (SEK), Adv. No. 10-00175,

-35-

slip op. at 10-11. These transaction terms are neutral; there is

no earthly reason why their use would be inappropriate under a

contractual rights regime.

Based on the totality of the documentary evidence, it

seems virtually unarguable not only that the developer intended to

create and transfer contractual timeshare interests but also that

the appellees accepted their Unit on such an understanding. It

follows that the majority's heavy reliance on the permissive "may

be recorded" language of section 1262a, see ante at 14-17, is

misplaced. After all, the Timeshare Act specifically excludes

contractual timeshare regimes from the grasp of section 1262a. See

P.R. Laws Ann. tit. 31, § 1262.

Indeed, if the parties' failure to record is relevant at

all, it cuts the other way. Had the appellees believed that they

were purchasing real property interests, they almost certainly

would have recorded those interests. It is common ground that an

owner's failure to record an interest in real property exposes the

owner to significant risk. Should a subsequent good-faith

purchaser of the same property record first, he will become the

rightful owner even though his deed is later in time. See P.R.

Laws Ann. tit. 31, § 3822; see also United States v. One Urban Lot

Located at 1 St. A-1, 865 F.2d 427 , 429 (1st Cir. 1989) (discussing

the "safeguards of [Puerto Rico's] strict Registry system"); United

States v. V & E Eng'g & Constr. Co., 819 F.2d 331 , 333 (1st Cir.

-36-

1987) (describing Puerto Rico's registry system as promoting

"reliance on public records of property ownership"). Because

recordation provides such important protections for real property

buyers, it would be highly unusual for anyone, let alone parties

who had lawyers and financing banks looking over their shoulders,

to structure a real-estate conveyance without providing for

recordation.15

To sum up, I disagree with the majority's conclusion that

the rights possessed by the appellees are real property rights. I

also disagree with the majority's assumption that answering this

question ends the inquiry. Let me explain.

This case was commenced as an adversary proceeding that

sought a declaration as to whether the appellees should be regarded

as secured creditors. But regardless of whether the appellees

possess contractual or real property interests, their claim to

secured creditor status requires a further determination because

the Bankruptcy Code includes specific safeguards for timeshare

buyers. See 11 U.S.C. §§ 101(53D), 365(h)-(j); see also 3 Collier

on Bankruptcy ¶¶ 365.11(4), 365.12(3) (Alan N. Resnick & Henry J.

Sommer eds., 16th ed. 2013).

The Bankruptcy Code has long furnished special

protections to lessees or buyers of real property when the lessor

15 In this regard, it is noteworthy that the transaction here was not geared to recordation. For aught that appears, the signatures on the pertinent documents were not even notarized.

-37-

or seller enters bankruptcy and seeks to reject the lease or

purchase agreement as an executory contract. See 11 U.S.C.

§ 365(h)-(j). In 1984, Congress extended these protections to

owners of timeshare interests. See Bankruptcy Amendments and

Federal Judgeship Act of 1984, Pub. L. No. 98-353, §§ 401-404, 98

Stat. 333, 366-67 (1984). This extension was intended to overrule

cases like In re Sombrero Reef Club, Inc., 18 B.R. 612 (Bankr. S.D.

Fla. 1982), which had allowed timeshare agreements to be rejected

out of hand as executory contracts. See In re Lee Road Partners,

Ltd., 155 B.R. 55 , 61 (Bankr. E.D.N.Y. 1993); 3 Collier on

Bankruptcy, supra, ¶ 365.11(4).

Under this prophylaxis, when a bankrupt debtor seeks to

reject a timeshare agreement as an executory contract, the

timeshare owner has two options. If the timeshare owner is in

possession or the term of the timeshare interest has commenced, he

may remain in possession of his timeshare interest. 11 U.S.C.

§ 365(h)(2)(A)(ii), (i)(1). If he does so, he can set off any

damages caused by the debtor's post-rejection nonperformance

against any payments due to the debtor, including deferred purchase

price installments and annual maintenance fees. Id.

§ 365(h)(2)(B), (i)(2)(A).

As an alternative, the timeshare owner can treat the

timeshare interest as terminated and file a claim for damages

against the bankruptcy estate. Id. § 365(h)(2)(A)(i), (i)(1).

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Under section 365(i), his damages claim would seem to be secured

(at least up to the amount of the purchase price paid). See id.

§ 365(j). Under section 365(h), however, the claim would seem to

be unsecured. See 3 Collier on Bankruptcy, supra, ¶ 365.11(4)

(discussing availability of lien under subsection (i) but not under

subsection (h)).

The facts here are inscrutable: the record before us does

not indicate whether the appellees' timeshare contract was ever

formally rejected. By like token, it does not indicate whether the

appellees were ever afforded an opportunity to make their election

under section 365.

An authoritative determination as to whether the

appellees are secured creditors cannot be made in a vacuum. On the

one hand, unless and until the appellees' timeshare interest is

rejected, it may represent a valid and enforceable contract despite

the bankruptcy. On the other hand, if the debtor has formally

rejected the agreement — a course of action that seems consistent

with the reorganization plan — section 365 would come into play and

the appellees would have to be allowed to make elections as

provided therein.

The situation is further complicated because the

relationship between sections 365(h) and 365(i) is especially

tenebrous in the timeshare context. See id. To the extent that

these subsections may be relevant, it seems likely that factual

-39-

findings will be helpful in determining not only which subsection

will apply but also whether the appellees should be considered "in

possession." See generally 3 Collier on Bankruptcy, supra,

¶ 365.12(3) (discussing unique difficulty of "in possession"

concept in timeshare context).

Here, there are no findings. With only a single

(meaningless) exception, neither the parties nor the courts below

have so much as acknowledged the existence of the relevant

statutory provisions.

Given the utter absence of such findings, the appellees'

claim to secured creditor status is left up in the air. I would,

therefore, reverse the decision holding the appellees' timeshare

interest to be a real property interest and remand to the

Bankruptcy Appellate Panel with instructions that it remand to the

bankruptcy court for further proceedings.

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APPENDIX A

Appellant's Court of Appeals Brief

The appellant's brief to this court contains its

contractual rights argument in at least the following places:

C The appellant's argument summary begins: "[p]ursuant to the Timeshare Act, the Regime subject of this appeal was constituted to grant contractual (personal) rights to the timeshare owners since [the Deed], which dedicated the Regime, explicitly declares so."

C The appellant's second issue is framed as "[w]hether the owners . . . may be granted secured creditor status . . . despite the fact that the Regime was constituted by [the Deed] to grant contractual (personal) rights to the timeshare owners and no real property interest was conveyed."

C The first bolded header in the brief's argument section reads: "[t]he Timeshare Regime was structured to confer contractual (personal) rights to the timeshare owners."

C Later in the brief the appellant argues that "[the Deed] constituted the Timeshare Regime to grant contractual (personal) rights to the timeshare owners and no real property interest was conveyed pursuant to the Timeshare Act."

C The appellant also declares that "[the Deed], which constituted the Regime in the present case, explicitly states, using the statutory language, that the timeshare rights in the Regime are of a contractual (personal) nature."

Appellant's Brief to the Bankruptcy Appellate Panel

The appellant's brief to the Bankruptcy Appellate Panel

contained its contractual rights argument in at least the following

places:

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C The brief presents the second issue as "[w]hether the owners of timeshare rights in the Regime may be granted secured creditor status . . . despite the fact that the Regime was constituted by [the Deed] to grant personal (contractual) rights to the timeshare owners and no real property interest was conveyed."

C The second sentence of the brief's statement of the case reads: "[the Deed] specifically states that the timeshare rights in the Regime are of a personal (contractual) nature."

C In its synopsis of the facts, it declares that "[the Deed] specifically states that the timeshare rights in the Regime are of a personal (contractual) nature."

C The first bolded header of its discussion section reads: "[t]he Timeshare Regime was structured to confer personal (contractual) rights to the timeshare owners."

Proceedings Before the Bankruptcy Court

In proceedings before the bankruptcy court, the appellant

pressed its contractual rights argument in at least the following

places:

C The appellant's initial adversarial complaint argues that "[the Deed] specifically states that timeshare rights in the Regime are of a personal (contractual) nature."

C The first paragraph of the appellant's memorandum of law in support of its motion for summary judgment argues that "the owners of timeshare rights in this particular regime have no property rights, but merely a contractual (personal) right."

C The first sentence of the section of the appellant's memorandum of law in support of its motion for summary judgment that applies the law to the facts reads: "[i]n this case, the Timeshare Regime was constituted to grant personal (contractual) rights to timeshare owners."

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